Capital One Financial Corp. v Domain Administrator / See PrivacyGuardian.org
Claim Number: FA1410001584217
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, United States. Respondent is Domain Administrator / See PrivacyGuardian.org (“Respondent”), Arizona.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonefinancing.com>, registered with NameSilo, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 10, 2014; the Forum received payment on October 10, 2014.
The lapse in time between October 10, 2014 and the present is due to the fact that certain receivership and bankruptcy proceedings were taking place during that time in the United States District Court for Northern District of Texas. In the course of those proceedings, the Court issued a stay of proceedings which affected the ongoing conduct of this proceeding. The Forum understands that as at December 1, 2019 the receivership and all bankruptcy proceedings were terminated. Accordingly, the present proceeding has been resumed.
On January 14, 2020, NameSilo, LLC confirmed by e-mail to the Forum that the <capitalonefinancing.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 January 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 5, 2020 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@capitalonefinancing.com. Also on January 16, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On February 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it provides banking, financial and credit card services. Complainant has rights in the CAPITAL ONE mark based upon registration in the United States in 1996.
Complainant alleges that the disputed domain name is confusingly similar to its CAPITAL ONE mark as it incorporates the mark in its entirely, merely adding the generic term “financing” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s CAPITAL ONE mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements, including to Complainant’s competitors.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Additionally, Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge or constructive notice of Complainant’s CAPITAL ONE mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CAPITAL ONE and uses it to provide banking, financial and credit card services.
Complainant’s rights in its mark date back to 1996.
The disputed domain name was registered in 2005.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays click-through advertisements, including to competitors of Complainant.
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. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s mark and merely adds the descriptive term “financing” and a gTLD. Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark do not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see alsoTrip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the <capitalonefinancing.com> is confusingly similar to Complainant’s CAPITAL ONE mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s CAPITAL ONE mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Here, the WHOIS information of record identifies registrant as “Domain Administrator / See PrivacyGuardian.org.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The resolving website that is displays click-through advertising links, including to competitors of Complainant. Advertisements that divert traffic to third-party websites do not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”); see also Capital One Financial Corp. v. Henry Olori / Request Media Network, FA1647370 (Forum December 15, 2015) (finding that “…Respondent has no rights or legitimate interests in or to the disputed domain name” because “[a] respondent’s use of a disputed domain name to offer products and services that are in direct competition with Complainant’s business does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use.”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to attempt to attract, for commercial gain, users to its website which features click-through advertisements to Complainant’s competitors. Using a confusingly similar domain name to commercially benefit via, pay-per-click links can evince bad faith registration and use per Policy ¶ 4(b)(iv). Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also Capital One Financial Corp. v. Ryan G Foo / PPA Media Services, FA 1544064 (Forum March 25, 2014) (finding that “Respondent acted in bad faith under Policy ¶ 4(b)(iii)” and that “Respondent demonstrates bad faith commercial disruption as Respondent uses the disputed domain name for hyperlinks to services competing with those offered under Complaint’s CAPITAL ONE mark.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonefinancing.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 10, 2020
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