Capital One Financial Corp. v. Ryaan G Foo / PPA Media Services
Claim Number: FA1401001540683
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Ryaan G Foo / PPA Media Services (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonebamk.com>, registered with Internet.bs Corp.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 24, 2014; the National Arbitration Forum received payment on January 24, 2014.
On January 30, 2014, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <capitalonebamk.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 February 4, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2014 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@capitalonebamk.com. Also on February 4, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 27, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
Policy ¶ 4(a)(i):
Policy ¶ 4(a)(ii):
Policy ¶ 4(a)(iii):
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant uses the CAPITAL ONE BANK mark in connection with its banking services. Complainant has registered the CAPITAL ONE BANK mark (e.g., Reg. No. 3,419,972 registered on April 29, 2008).
Respondent Ryaan G Foo / PPA Media Services, registered the <capitalonebamk.com> domain name on July 17, 2006. Respondent is using the domain name to operate a website that displays a search engine for related services, including some of Complainant’s primary competitors in the field of banking.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Regardless of Respondent’s location, evidence of a USPTO registration satisfies Policy ¶ 4(a)(i)’s required showing of rights. See, e.g., Scripps Networks, LLC v. chen wenjie, FA 1523127 (Nat. Arb. Forum Nov. 12, 2013) (“The Panel finds that Complainant’s USPTO registration establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i), even despite the fact that Respondent appears to reside out of the United States.”). The <capitalonebamk.com> domain name is confusingly similar to the CAPITAL ONE BANK mark under Policy ¶ 4(a)(i), as the gTLD, misspelling of the term “bank,” and removal of spacing do not distinguish this domain name from Complainant’s mark. See Google Inc. v. N/A/ k gautam, FA 1524232 (Nat. Arb. Forum Nov. 18, 2013) (finding that the disputed domain name is confusingly similar to the at-issue mark despite the misspelling of the mark by omitting letters, the addition of a generic term, and the addition of a generic top-level domain).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent is not commonly known as <capitalonebamk.com>. Respondent is not authorized or licensed to use the CAPITAL ONE BANK mark in domain names. The WHOIS information for the disputed domain name lists “Ryaan G Foo / PPA Media Services” as the registrant of record. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent is using the <capitalonebamk.com> domain name to operate a website that displays a search engine for related services, including some of Complainant’s primary competitors in the field of banking. The disputed domain name resolves to a website of hyperlink advertisements to competitors such as Visa, American Express, and Securus, as well as other links to other unrelated offerings. See Compl., at Attached Ex. D. Commercial hyperlink listings do not give rise to a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Respondent use of competing hyperlink advertisements on the <capitalonebamk.com> domain name’s website evidences intent to unfairly disrupt Complainant’s business. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent is profiting through commercial advertisements off of the likelihood that Internet users who enter the disputed domain name under the belief that the domain name is associated with Complainant. See, e.g., Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names). Respondent has engaged in Policy ¶ 4(b)(iv) bad faith.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonebamk.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 12, 2014
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