Capital One Financial Corp. v. Suriya Meeploud
Claim Number: FA1503001612150
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Suriya Meeploud (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <capitaloneapproval.info> and <capitalonebadcreditautoloan.info>, registered with Crazy Domains FZ-LLC (R559-LRMS).
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge, she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically March 30, 2015; the Forum received payment March 30, 2015.
On April 1, 2015, Crazy Domains FZ-LLC (R559-LRMS) confirmed by e-mail to the Forum that the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names are registered with Crazy Domains FZ-LLC (R559-LRMS) and that Respondent is the current registrant of the names. Crazy Domains FZ-LLC (R559-LRMS) verified that Respondent is bound by the Crazy Domains FZ-LLC (R559-LRMS) registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 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@capitaloneapproval.info, postmaster@capitalonebadcreditautoloan.info. Also on April 2, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications record, the Administrative Panel (the "Panel") finds that the Forum 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 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 names be transferred from Respondent to Complainant.
A. Complainant alleges the following in this proceeding:
Complainant owns the capital one mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,442,400, registered June 3, 2008). Complainant offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE mark to promote its goods and services. The <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names are confusingly similar to the CAPITAL ONE mark. The <capitaloneapproval.info> domain name contains Complainant’s mark in full, omits the space between “Capital” and “One,” adds the generic term “approval,” and attaches the generic top-level domain (“gTLD”) “.info” to the domain name. The <capitalonebadcreditautoloan.info> domain name contains Complainant’s mark in full, omits the space between “Capital” and “One,” adds the generic terms “bad credit auto loan,” and attaches the gTLD “.info” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, as evidenced by the WHOIS record for the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names. Further, Complainant has never authorized Respondent to use the CAPITAL ONE trademark, nor use the mark in its domain names. Respondent’s lack of rights or legitimate interests in the disputed domain names is made further evident by Respondent’s failure to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain names seek to impersonate Complainant’s official website. See Compl., at Attached Ex. C.
Respondent engaged in bad faith registration and use of the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names. Respondent’s use of the disputed domain names disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, by choosing domain names connected with Complainant’s well-known mark, Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark.
Respondent’s Contentions in this proceeding:
Respondent did not submit a response.
The Panel notes that Respondent registered the <capitaloneapproval.info> domain name October 25, 2014, and registered the <capitalonebadcreditautoloan.info> domain name October 24, 2014.
Complainant established that it has legal rights and legitimate interests under the Policy to the mark contained in its entirety within the disputed domain names.
Respondent has no such rights or legitimate interest in the mark or the disputed domain names.
The disputed domain names are confusingly similar to Complainant’s protected mark.
Respondent registered and used the disputed domain names 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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant contends that it owns the capital one mark through its registration with the USPTO (e.g., Reg. No. 3,442,400, registered June 3, 2008). Complainant states that it offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE mark to promote its goods and services. Prior panels have concluded that registration of a mark with a trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i), even when Respondent does not reside in the country where the mark is registered. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Accordingly, even though Respondent reportedly resides in Thailand, the Panel finds that Complainant’s USPTO registration is sufficient to established rights and interests under Policy ¶ 4(a)(i).
Complainant asserts that the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names are confusingly similar to the CAPITAL ONE mark. The <capitaloneapproval.info> domain name contains Complainant’s mark in full, omits the space between “Capital” and “One,” adds the generic term “approval,” and attaches the generic top-level domain (“gTLD”) “.info” to the domain name. The <capitalonebadcreditautoloan.info> domain name contains Complainant’s mark in full, omits the space between “Capital” and “One,” adds the generic terms “bad credit auto loan,” and attaches the gTLD “.info” to the domain name. Previous panels have found that the omission of a space and the addition of a gTLD is irrelevant to Policy ¶ 4(a)(i) analysis, as spaces are impermissible in domain names and gTLDs are required. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“). Further, prior panels have held that the addition of generic words or terms does not adequately distinguish a disputed domain name from a registered mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term). Thus, this Panel finds that the disputed domain names are confusingly similar under Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered disputed domain names that are confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such 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 asserts that Respondent has no rights or legitimate interests in the disputed domain names. Complainant argues that Respondent is not commonly known by the disputed domain names, as evidenced by the WHOIS record for the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names. The Panel notes that the WHOIS information for the disputed domain name lists “Suriya Meeploud” as the registrant of record for each. See Compl., at Attached Ex. B. Further, Complainant states that it has never authorized Respondent to use the CAPITAL ONE trademark, nor to use the mark in its domain names. As Respondent failed to provide submissions to refute Complainant’s allegations, the Panel finds that Complainant’s contentions are sufficient to establish Respondent’s lack of rights to the disputed domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant alleges that Respondent’s lack of rights or legitimate interests in the disputed domain names is made further evident by Respondent’s failure to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant demonstrates that Respondent’s disputed domain names seek to impersonate Complainant’s official website. See Compl., at Attached Ex. C. Respondent’s use, as demonstrated in Complainant’s Attached Exhibit C, constitutes “passing off,” which previous panels have agreed fails to amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use in a disputed domain name. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Lacking a bona fide offering of goods or services, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names under Policy ¶ 4(c)(i). Further, the Panel agrees that as Respondent’s domain names are used presumably for financial gain, logically no “noncommercial or fair use” exists under Policy ¶ 4(c)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names containing Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant alleges that Respondent’s use of the disputed domain names disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Complainant argues that Respondent’s use of the disputed domain names results in customer confusion, and further, Respondent provides unverified information about Complainant through the disputed domain names. Previous panels have found that “passing off” behavior qualifies to support findings of bad faith registration and use under Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion). Therefore, the Panel finds bad faith registration under Policy ¶ 4(b)(iii).
Complainant asserts that by choosing domain names connected with Complainant’s mark, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The Panel recalls that the disputed domain names resolve to websites that appear to offer competing lending and financial services. See Compl. At Attached Ex. C. Further, the Panel notes that the disputed domain names include competing hyperlinks that lead to various third-party financial providers. Complainant argues that Respondent’s site confuses consumers as to the source, sponsorship, affiliation or endorsement of Respondent’s website, presumably for financial gain. See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). This Panel agrees that Respondent’s use as shown in Attached Exhibit C demonstrates that Respondent seeks commercial gain through a likelihood of confusion with Complainant’s mark and offerings of similar services, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain names containing Complainant’s protected mark in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii). The Panel further finds that the evidence permits an inference that Respondent had actual knowledge of Complainant’s rights in the mark as is evidenced by the names of the disputed domain names and the use made by Respondent.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitaloneapproval.info> and <capitalonebadcreditautoloan.info> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist.
Dated: May 14, 2015.
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