Capital One Financial Corp. v. Domain Stand
Claim Number: FA1501001598656
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia. Respondent is Domain Stand (“Respondent”), Connecticut.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fcapitalone.com>, registered with GODADDY.COM, LLC.
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.
Paul M. DeCicco, 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 8, 2015, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <fcapitalone.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 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@fcapitalone.com. Also on January 9, 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 Paul M. DeCicco 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 contends as follows:
Complainant owns the CAPITAL ONE mark through its registration with the United States Patent and Trademark Office (“USPTO”). Complaint owns numerous other marks related to its CAPITAL ONE mark worldwide.
Complainant uses the CAPITAL ONE mark in connection with its banking, credit card, and financial services.
Respondent’s <fcapitalone.com> domain name is confusingly similar to the CAPITAL ONE mark. The domain name incorporates the mark in full and adds the letter “f.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information for the disputed domain name does not indicate that Respondent is commonly known by the disputed domain name. Further, Complainant has never authorized Respondent to use its trademarks. Respondent’s lack of rights or legitimate interests in the <fcapitalone.com> domain name is made evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain name redirects Internet users to a website featuring a search engine and “related links.”
Respondent has engaged in bad faith registration and use of the <fcapitalone.com> domain name. Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. Respondent’s actions qualify as bad faith registration under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CAPITAL ONE mark through its registration of such mark with the USPTO and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent uses the at-issue domain name to address a website featuring a search engine and “related links.”
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant establishes its rights in the CAPITAL ONE mark through its USPTO trademark registrations of such mark, as well as by its related registrations worldwide. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Respondent’s domain name incorporates Complainant’s trademark in full less its space, prefixes the letter “f” thereto and then appends the top-level domain name “.com” to the resulting string. Merely adding the single letter “f” to Complainant’s mark does nothing to distinguish the at-issue domain name from the Complainant’s trademark for the purposes of the Policy and the attached top-level domain name is irrelevant to the Panel’s analysis. Therefore the Panel concludes that the at-issue domain name is confusingly similar to Complainant’s CAPITAL ONE trademark under Policy ¶4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”) This Panel determines that the disputed domain name is confusingly similar under Policy ¶ 4(a)(i); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”)
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name lists “John Gary Maynard” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <fcapitalone.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent uses the at-issue domain name to direct Internet users to a website featuring a search engine and “related links” where links to other financial institutions are presented, including links to some of Complainant’s competitors. Using the domain name in this manner is 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 Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above, Respondent uses of the confusingly similar <fcapitalone.com> domain name to shuttle Internet users to a website presenting links to Complainant’s competitors. Such use disrupts Complainant’s business and demonstrates Respondent’s bad faith under Policy ¶4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Capital One Financial Corp. v. Ryan G Foo / PPA Media Services, FA 1544064 (Nat. Arb. Forum March 25, 2014) (finding that “Respondent acted in bad faith under Policy ¶ 4(b)(iii)” and that “Respondent demonstrates bad faith commercial disruption as Respondent uses the disputed domain name for hyperlinks to services competing with those offered under Complaint’s CAPITAL ONE mark.”)
Further, Respondent attracts Internet users to its website by creating a likelihood of confusion with the Complainant’s mark so that it might profit from cyber traffic seeking Complainant’s legitimate Internet presence. This activity undoubtedly is designed to generate revenue Respondent. Thereby, Respondent inappropriately benefits from the valuable goodwill that Complainant has established in its CAPITAL ONE mark. These circumstances indicate Respondent’s bad faith registration and use of the at-issue domain name pursuant to 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).”).
Finally, Respondent’s domain name exemplifies typosquatting. Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark when searching for the mark’s associated products or services. In doing so wayward Internet users are directed to a web presence controlled by the domain name’s registrant where their accidental visits may be exploited through pay-per-click links or otherwise. Here, Respondent simply prefixes an “f” to Complainant’s trademark ‑the key located where touch typists rest their index finger– and prays that typists searching for Complainant will inadvertently strike that key prior to entering Complainant’s CAPITAL ONE trademark into a search engine or URL address field. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under 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 <fcapitalone.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 10, 2015
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