Capital One Financial Corp. v. Ryan G Foo / PPA Media Services
Claim Number: FA1402001541919
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonecreditcardlogin.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 3, 2014; the National Arbitration Forum received payment on February 3, 2014.
On February 4, 2014, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <capitalonecreditcardlogin.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 5, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 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@capitalonecreditcardlogin.com. Also on February 5, 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 March 5, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 makes the following assertions:
1. Respondent’s <capitalonecreditcardlogin.com> domain name, the domain name at issue, is confusingly similar to Complainant’s CAPITAL ONE mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a major financial institution which offers a vast array of financial products and services to its customers and has rights in the CAPITAL ONE mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,442,400 registered June 3, 2008) as well as with Chile’s National Institute of Industrial Property (“NIIP”) (Reg. No. 573,667 registered August 9, 2000). Respondent’s <capitalonecreditcardlogin.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark. Respondent adds the generic terms “credit card” and “login" and also adds the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the disputed domain name. The WHOIS information for Respondent’s disputed domain name lists “Ryan G. Foo” as registrant. Further, Complainant has never authorized Respondent to use its CAPITAL ONE trademark in any way. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name resolves to a website hosting a search engine, related links, and sponsored listings. Respondent’s resolving website also provides links to financial institutions competing with Complainant.
Respondent’s use of the confusingly similar disputed domain name disrupts Complainant’s business by operating a search engine featuring links that compete with Complainant. Respondent’s disputed domain name was created on October 14, 2010.
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.”).
Complainant is a major financial institution that offers a vast array of financial products and services to its customers and owns registrations with the USPTO for the CAPITAL ONE mark (e.g., Reg. No. 3,442,400 registered June 3, 2008) and with the Chilean NIIP (Reg. No. 573,667 registered August 9, 2000). Previous panels have found that providing the panel with evidence of a registration with the USPTO or Chile’s NIIP is sufficient to demonstrate rights in a given mark. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (holding that a trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)); see also Teck Res. Ltd. & Teck Operaciones Mineras Chile Limitada v. Amexa Ltda., FA 1420960 (Nat. Arb. Forum Jan. 27, 2012) (finding complainant’s registration with Chile’s NIIP satisfactory to establish complainant’s rights in the TECK mark). Accordingly, the Panel concludes that Complainant has rights in the CAPITAL ONE mark under Policy ¶ 4(a)(i).
Respondent adds the generic terms “credit card” and “login” to Complainant's mark. Previous panels have concluded that adding generic or descriptive terms to a complainant’s mark does not differentiate it to the extent required to avoid a finding of confusingly similar under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Respondent also adds the gTLD “.com.” Respondent also removes the space in Complainant’s CAPITAL ONE mark. Prior panels have frequently found that adding a gTLD and removing the space in a mark are insufficient variations to differentiate a disputed domain name from a registered mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). The Panel concludes that Respondent’s <capitalonecreditcardlogin.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent is not commonly known by the disputed domain name. The WHOIS information for Respondent’s disputed domain name lists “Ryan G. Foo” as registrant. Complainant has never authorized Respondent to use its CAPITAL ONE trademark in any way. Panels have frequently found that a respondent is not commonly known by a disputed domain name where there is no evidence, in the WHOIS information or otherwise, indicating that respondent is commonly known by the disputed domain name. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent’s disputed domain name resolves to a website featuring a search engine, related links, and sponsored listings which also provides links to financial institutions competing with Complainant. Respondent’s website resolves to a page featuring links including, “Capital One Credit Card,” “FreeCreditScore.com,” “VA Home Loans-$0 Down,” “Any Purpose Personal Loan,” “3 Credit Scores (Free),” “Capital 1 Credit Card,” “Accept Credit Card,” “The Discover it Card,” “Capital One Credit Card Login,” and “Bad Credit Car Financing.” Prior panels have concluded that using a confusingly similar domain name to resolve to a website featuring links to a complainant’s competitors does not bestow rights or legitimate interests in a disputed domain name on a respondent. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Accordingly, this Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent’s use of the confusingly similar domain name disrupts Complainant’s business by operating a search engine featuring links that compete with Complainant. Panels have routinely found bad faith when a respondent uses a confusingly similar domain name to resolve to a website featuring links that compete with complainant and redirect Internet users to third-party websites. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). This Panel concludes that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Further, Respondent is benefiting from the confusion caused to Internet users by Respondent’s use of a confusingly similar domain name and is benefitting from the goodwill associated with Complainant’s business and CAPITAL ONE mark. Prior panels have found bad faith use and registration under Policy ¶ 4(b)(iv) where a respondent uses a disputed domain name to attract and confuse Internet users for respondent’s commercial gain. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). Accordingly, the Panel finds that Respondent registered and is using the <capitalonecreditcardlogin.com> domain name in bad faith under Policy ¶ 4(b)(iv).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonecreditcardlogin.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 9, 2014
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