Capital One Financial Corp. v. Ryan G Foo / PPA Media Services
Claim Number: FA1501001598554
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 <capitalonecreditreport.com>, registered with Internet.bs Corp.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 7, 2015; the National Arbitration Forum received payment on January 7, 2015.
On January 11, 2015, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <capitalonecreditreport.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 January 13, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 2, 2015 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@capitalonecreditreport.com. Also on January 13, 2015, 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 6, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <capitalonecreditreport.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark.
2. Respondent does not have any rights or legitimate interests in the <capitalonecreditreport.com> domain name.
3. Respondent registered and uses the <capitalonecreditreport.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses its CAPITAL ONE mark to promote its financial services. The CAPITAL ONE mark is duly registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,989,909, registered July 5, 2011).
Respondent registered the <capitalonecreditreport.com> domain name on October 14, 2010, and uses it to promote credit card services, some of which compete with Complainant’s business.
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 Panel finds that Complainant’s USPTO registration is clear evidence of Complainant’s Policy ¶ 4(a)(i) rights in the CAPITAL ONE mark. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that, where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i)”).
Respondent’s <capitalonecreditreport.com> domain name combines Complainant’s mark with the descriptive phrase “credit report,” removes all spacing, and adds the gTLD “.com.” The Panel finds that the gTLD “.com” and the lack of spacing are not meaningful changes to Complainant’s CAPITAL ONE mark. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The phrase “credit report” exacerbates the confusing similarity of the disputed domain name when used with Complainant’s related CAPITAL ONE mark. See Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”). Thus, the Panel finds that the <capitalonecreditreport.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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.”).
Complainant contends that Respondent is not commonly known as <capitalonecreditreport.com> domain name and is listed as “Ryan G Foo.” The Panel finds that nothing in the record indicates that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
Complainant also argues that Respondent uses the <capitalonecreditreport.com> domain name for a website that promotes credit card services, some of which are offered by Chase and CitiBank and thus compete with Complainant’s business. The Panel finds that Respondent’s website is used to compete with Complainant, which is not a Policy ¶ 4(c)(i) bona fide offering, or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <capitalonecreditreport.com> domain name to disrupt Complainant’s business through competing hyperlinks. The Panel agrees and finds that Respondent’s use of the disputed domain name to promote Complainant’s competitors constitutes Policy ¶ 4(b)(iii) bad faith. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonecreditreport.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 11, 2015
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