Capital One Financial Corp. v. Ryan G Foo / PPA Media Services
Claim Number: FA1409001579892
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 <mycapitalonecare.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 September 16, 2014; the National Arbitration Forum received payment on September 16, 2014.
On September 19, 2014, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <mycapitalonecare.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 September 23, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 14, 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@mycapitalonecare.com. Also on September 23, 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 October 22, 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
Complainant owns the CAPITAL ONE mark through trademark registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,065,991 registered May 27, 1997). Complainant uses the CAPITAL ONE mark to offer a broad spectrum of financial products and services to consumers, small businesses, and commercial clients. The <mycapitalonecare.com> domain name is confusingly similar to the CAPITAL ONE mark as the added terms “my” and “care” and the generic top-level domain “.com” fail to distinguish the name from the incorporated mark.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the <mycapitalonecare.com> domain name. Respondent is not authorized to use the mark. The <mycapitalonecare.com> domain name resolves to a website featuring a search engine, “related links”, and “sponsored listings.” The landing page promotes links to financial institutions in competition with Complainant, such as, “Visa,” “Mastercard,” and “Wells Fargo.”
Respondent has registered and is using the disputed domain name in bad faith. Respondent has violated Policy ¶ 4(b)(iii) as the disputed domain name resolves to promote links in competition with Complainant, thereby disrupting Complainant’s business. Further, in violation of Policy ¶ 4(b)(iv), Respondent is attempting to misled Internet users into affiliating the disputed domain name with Complainant, thereby usurping Complainant’s goodwill for Respondent’s own profit.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Capital One Financial Corp., owns the CAPITAL ONE mark through trademark registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,065,991 registered May 27, 1997). Complainant uses the CAPITAL ONE mark to offer a broad spectrum of financial products and services to consumers, small businesses, and commercial clients.
Respondent, Ryan G Foo / PPA Media Services, registered the <mycapitalonecare.com> domain name on November 27, 2005. Respondent’s <mycapitalonecare.com> domain name resolves to a website featuring a search engine, “related links”, and “sponsored listings.” The landing page promotes links to financial institutions in competition with Complainant, such as, “Visa,” “Mastercard,” and “Wells Fargo.”
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 owns rights in the CAPITAL ONE mark under Policy ¶ 4(a)(i) through trademark registrations with the USPTO. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction); W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <mycapitalonecare.com> domain name is confusingly similar to the CAPITAL ONE mark under Policy ¶ 4(a)(i). The added terms “my” and “care” and the generic top-level domain (“gTLD”) “.com” fail to distinguish the name from the incorporated mark. Nor does the omission of the space between the two-word mark distinguish the domain name from the mark.
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 by the <mycapitalonecare.com> domain name under Policy ¶ 4(c)(ii). The WHOIS record identifies “Ryan G Foo / PPA Media Services” as the domain name registrant. Respondent is not authorized to use the mark. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <mycapitalonecare.com> domain name resolves to a website featuring a search engine, “related links”, and “sponsored listings,” which promote links to financial institutions in competition with Complainant. Respondent’s use of the <mycapitalonecare.com> to promote hyperlinks to providers in competition with Complainant constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003)(the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
Respondent has violated Policy ¶ 4(b)(iii) as the disputed domain name resolves to promote links in competition with Complainant, thereby disrupting Complainant’s business. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) 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 uses the <mycapitalonecare.com> domain name to operate a website which features links to competing commercial websites from which Respondent presumably receives referral fees. Therefore, Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
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 <mycapitalonecare.com> domain name be TRANSFERRED from Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 5, 2014
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