Capital One Financial Corp. v. cenglongming
Claim Number: FA1904001838845
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is cenglongming (“Respondent”), 中国.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <weservecapitalone.com>, registered with Xin Net Technology Corporation.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 15, 2019; the Forum received payment on April 15, 2019.
On April 18, 2019, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <weservecapitalone.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 April 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 2019 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@weservecapitalone.com. Also on April 19, 2019, 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 May 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant is a major financial institution that offers a broad spectrum of financial products and services to consumers, small businesses and commercial clients. Complainant has rights in the CAPITAL ONE mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,992,626, registered Aug. 13, 1996). Respondent’s <weservecapitalone.com>[i] domain name is confusingly similar to Complainant’s CAPITAL ONE mark as Respondent incorporates the mark in its entirety while adding the generic phrase “we serve” along with the “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the <weservecapitalone.com> domain name. Respondent is not authorized to use Complainant CAPITAL ONE mark and is not commonly known by the domain name.
3. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users away from Complainant to a website that offers website building services.
4. Respondent registered and uses the <weservecapitalone.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the resolving website of the domain name where it offers website building services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CAPITAL ONE mark. Respondent’s domain name is confusingly similar to Complainant’s CAPITAL ONE mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <weservecapitalone.com> domain name and that Respondent registered and uses the domain name in bad faith.
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 Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English. See TRIA Beauty, Inc. v. Xu Bao Rong c/o Xu Bao, FA1336978 (Forum Aug. 30, 2010) (“Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.”).
Complainant has rights in the CAPITAL ONE mark based upon registration of the mark with the USPTO (e.g., Reg. No. 1,992,626, registered Aug. 13, 1996). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel holds that Complainant’s registration of the CAPITAL ONE mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <weservecapitalone.com> domain name is confusingly similar to the CAPITAL ONE mark, as the name incorporates the mark in its entirety along with the generic phrase “we serve” and a “.com” gTLD. Such changes are not sufficient to distinguish the domain name from the CAPITAL ONE mark in a Policy ¶ 4(a)(i) analysis. See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). The Panel holds that the <weservecapitalone.com> domain name is confusingly similar to the CAPITAL ONE mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <weservecapitalone.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <weservecapitalone.com> domain name, as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the CAPTIAL ONE mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “cenglongming,” and no information in the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel holds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <weservecapitalone.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <weservecapitalone.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant has provided evidence that the domain name resolves to website that offers website building services. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 0180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). The Panel therefore determines that Respondent does not have rights or legitimate interests in the <weservecapitalone.com> domain name.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims Respondent’s use of the <weservecapitalone.com> domain name to pass off as Complainant in order to compete with Complainant’s business demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). The evidence in the record supports Complainant’s contention. Thus, the Panel holds that Respondent registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <weservecapitalone.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 18, 2019
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