Bloombergkenya.com

The timeline behind bloombergkenya.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Bloomberg Finance L.P. v. Dennis K / Zindek Claim Number: FA2209002014327 PARTIES Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Madeline Kessler of Bloomberg L.P., New York, USA. Respondent is Dennis K / Zindek (“Respondent”), Kenya. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <bloombergkenya.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Debrett G. Lyons as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on September 30, 2022; Forum received payment on September 30, 2022. On October 3, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <bloombergkenya.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On October 3, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bloombergkenya.com. Also on October 3, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. On November 1, 2022, pursuant to the complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant Complainant asserts trademark rights in BLOOMBERG and submits that the disputed domain name is confusingly similar to its trademark. Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant alleges that Respondent registered and used the disputed domain name in bad faith. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS The factual findings pertinent to the decision in this case are that: 1. Complainant provides electronic trading, financial news, analytics and information services by reference to the trademark BLOOMBERG; 2. Complainant owns, inter alia, Czech Republic trademark Reg. 257639 for the trademark BLOOMBERG; 3. the disputed domain name was registered on March 8, 2021 and resolves to a website described later; and 4. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the trademark. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Identical and/or Confusingly Similar Paragraph 4(a)(i) of the Policy requires a two-fold enquiry - a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant provides proof of registration of the trademark BLOOMBERG with a national trademark authority however that registration is in the name of Bloomberg L.P.. The Complaint states that Bloomberg L.P. “currently uses the BLOOMBERG trademark and service mark under license from Bloomberg Finance L.P. and its affiliated companies” from which it is inferred that Complainant is the beneficial owner of the trademark. Absent challenge, the Policy permits related entities to each assert trademark rights and so, even putting aside common law ownership, Complainant has rights in the trademark by reason of the Czech registration. For the purposes of comparison of the disputed domain name with the trademark the gTLD, “.com”, can be disregarded (see, for example, Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)). The disputed domain name then differs from the trademark by addition of the country name, “Kenya”, being non-distinctive and only likely to reinforce an impression of association with Complainant’s trademark. The Panel therefore finds the domain name confusingly similar to the trademark (see, for example, Dell Inc. v. Suchada Phrasaeng, FA 1745812 (Forum Sept. 28, 2017) (“Adding geographical terms does not sufficiently distinguish a domain name from a mark to prevent a finding of confusingly similarity under a Policy ¶ 4(a)(i) analysis.”; Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”; Net2phone Inc. v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) finding <net2phone-europe.com> confusingly similar to the complainant’s mark because “the combination of a geographic term with the mark does not prevent a domain name from being found confusingly similar"; Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2014) ("...it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.")). The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. Rights or Legitimate Interests Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000). The name of the domain name holder, as disclosed by the Registrar, is “Dennis K / Zindek”, which does not provide any indication that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties and Respondent has no authority to use the trademark. Complainant provides screenshots of the resolving website which is entitled “Welcome to Bloomberg Kenya LTD” and describes that company as one of the leading suppliers and exporters of minerals, precious stones, and oil and energy across east Africa and other parts of the world. On September 9, 2022, Complainant sent a cease and desist letter to Respondent who replied on September 17, 2022 advising that it had no association with the domain name. Although the resolving website is relatively refined in appearance, the Panel notes that Respondent did not assert in correspondence that it was the victim of identity theft, nor did it file a Response as might had been expected if the business was as substantial as claimed. Moreover, Complainant asserts without contradiction that “Bloomberg Kenya LTD”, is not registered with the Kenyan Registrar of Businesses. Absent a Response the Panel finds that Respondent is not commonly known by the domain name and that the resolving website is some form of ruse to attempt to support rights or a legitimate interest where none exist (see, for example, Bloomberg L.P. v. Bloomberg Realty (India) Private Limited, Forum Case Number FA1204001439263, finding that “Use of a domain name which intentionally trade on the fame of another cannot constitute a ‘bona fide’ offering of goods and services”). The Panel finds that Complainant has made a prima facie case that Respondent lacks rights or a legitimate interest in the domain name. The onus shifts to Respondent and, in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith. Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. The four specified circumstances are: (i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location. The Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) above. The Panel has already found confusing similarity. The resolving website exists for commercial gain in one form or another. In terms of the Policy, the Panel finds that Respondent has intentionally used the disputed domain name to attract, for commercial gain, internet users to its website by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of that website by implying to internet users that they will reach a local site either operated by Complainant or someone affiliated with Complainant. Panel finds that Complainant has satisfied the third and final element of the Policy. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <bloombergkenya.com> domain name be TRANSFERRED from Respondent to Complainant. Debrett G. Lyons, Panelist Dated: November 3, 2022 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.