Capital One Financial Corp. v. Prateepan Vara
Claim Number: FA1403001549469
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Prateepan Vara (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonepersonalloans.org>, registered with GoDaddy.com, LLC (R91-LROR).
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2014; the National Arbitration Forum received payment on March 19, 2014.
On March 19, 2014, GoDaddy.com, LLC (R91-LROR) confirmed by email to the National Arbitration Forum that the <capitalonepersonalloans.org> domain name is registered with GoDaddy.com, LLC (R91-LROR) and that Respondent is the current registrant of the name. GoDaddy.com, LLC (R91-LROR) has verified that Respondent is bound by the GoDaddy.com, LLC (R91-LROR) 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 March 20, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@capitalonepersonalloans.org. Also on March 20, 2014, the Written Notice of the Complaint, notifying Respondent of the email 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 April 16, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is a major financial institution headquartered in McLean, Virginia. Complainant was founded in 1988 and has used the CAPITAL ONE mark since its inception. Complainant and its wholly-owned subsidiaries own numerous trademark registrations and pending applications for CAPITAL ONE and related marks. Complainant’s CAPITAL ONE mark is registered in more than fifteen countries.
Complainant asserts that the disputed domain name <capitalonepersonalloans.org>, registered on July 19, 2013, is confusingly similar to its CAPITAL ONE mark. Complainant contends that Respondent lacks rights or legitimate rights in the disputed domain name, on the grounds that Respondent is not commonly known thereby; Complainant has never authorized Respondent to use its marks; and Respondent is using the disputed domain name for a website that seeks to mislead visitors into believing that it is an official Capital One website. Complainant states that Respondent’s website provides unverified information about Complainant accompanied by advertising links, some of which are to financial institutions that compete with Complainant. Finally, Complainant contends that Respondent’s use of the disputed domain name demonstrates that Respondent registered and is using the name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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(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.”).
The disputed domain name is identical to Complainant’s CAPITAL ONE mark, but for the addition of the generic term “personal loans” and the top-level domain suffix “.org”. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Bank of America Corp. v. Domaincar, FA 661292 (Nat. Arb. Forum May 2, 2006) (finding <bankofamericapersonalloans.com> confusingly similar to BANK OF AMERICA); Barclays Bank PLC v. Smith, D2012-0091 (WIPO Feb. 29, 2012) (finding <barclaysloans.org> confusingly similar to BARCLAYS). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and apparently its sole use has been in connection with a website aimed at creating confusion among Internet users as to its association with Complainant, in order to attract traffic for advertising links on the site. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site 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 [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of a domain name that combines Complainant’s mark with generic terms related to Complainant’s business, together with the use of that domain name for a website designed to mislead Internet users into believing it is associated with Complainant, and containing links to commercial websites that compete with Complainant, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Capital One Financial Corp. v. Zhichao Yang, FA 1544054 (Nat. Arb. Forum March 18, 2014); Royal Bank of Scotland Group plc v. Onete Philip c/o Domain Registrar, FA1222782 (Nat. Arb. Forum Oct. 20, 2008). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonepersonalloans.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 16, 2014
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