Capital One Financial Corp. v. Zhichao Yang
Claim Number: FA1410001583407
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <360capitalone.com>, registered with Name.com, Inc.
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 October 6, 2014; the National Arbitration Forum received payment on October 6, 2014.
On October 6, 2014, Name.com, Inc. confirmed by email to the National Arbitration Forum that the <360capitalone.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 October 9, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 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@360capitalone.com. Also on October 9, 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 November 6, 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 issues 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 in the United States and many other countries. Among Complainant’s U.S. registrations is the mark CAPITAL ONE 360.
Complainant asserts that the disputed domain name <360capitalone.com>, registered on January 14, 2013, is confusingly similar to its CAPITAL ONE and CAPITAL ONE 360 marks. 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 to display links to competing financial institutions, which Complainant alleges is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Finally, Complainant contends that the disputed domain name was registered and is being used in bad faith, on the grounds that Respondent is using the name to link to competitors of Complainant by causing confusion with Complainant’s marks, thereby disrupting Complainant’s business; and that Respondent concealed its identity by registering the domain name via a privacy service.
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 corresponds to Complainant’s CAPITAL ONE 360 trademark, with its elements inverted and the top-level domain suffix “.com” appended thereto. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Capital One Financial Corp. v. Bin Zhenhua, FA 1542171 (Nat. Arb. Forum Apr. 8, 2014) (finding <360bankonline.com>, <360banl.com>, <360bnk.com>, and <www360bank.com> confusingly similar to BANK 360); Thomson Reuters v. Above.com Domain Privacy, FA 1454510 (Nat. Arb. Forum Aug. 23, 2012) (finding <knowledgereuters.com> confusingly similar to REUTERS KNOWLEDGE). 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 that contains advertising links to competitors of Complainant. See, e.g., Capital One Financial Corp. v. Above.com Legal, FA 1541008 (Nat. Arb. Forum Feb. 28, 2014) (finding lack of rights or legitimate interests in similar circumstances). 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 is nearly identical to Complainant’s mark, together with the use of that domain name to link 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. Above.com Legal, supra. 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 <360capitalone.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 10, 2014
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