Capital One Financial Corp. v. Domain Admin / Privacy Protection Service INC d/b/a PrivacyProtect.org
Claim Number: FA1505001617685
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Domain Admin / Privacy Protection Service INC d/b/a PrivacyProtect.org (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <httpscapitalone.com>, registered with Media Elite Holdings Limited.
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 Forum electronically on May 4, 2015; the Forum received payment on May 4, 2015.
On May 13, 2015, Media Elite Holdings Limited confirmed by email to the Forum that the <httpscapitalone.com> domain name is registered with Media Elite Holdings Limited and identified the current registrant of the name as Carolina Rodrigues, Belize City, Belize. Media Elite Holdings Limited has verified that the registrant is bound by the Media Elite Holdings Limited 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 May 14, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 3, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration (including both the public whois data and that provided in the registrar’s verification email) as technical, administrative, and billing contacts, and to postmaster@httpscapitalone.com. Also on May 14, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On June 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 owns numerous trademark registrations for CAPITAL ONE and related marks in the United States and many other countries.
Complainant asserts that the disputed domain name <httpscapitalone.com>, registered in November 2013, is confusingly similar to its CAPITAL ONE mark; that Respondent lacks rights or legitimate rights in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name, and that Complainant has never authorized Respondent to use its marks. Complainant states further that the disputed domain name resolves to a website containing links to financial institutions, some of which compete with Complainant. Finally, Complainant notes that the domain name was registered through a privacy service, concealing the registrant’s true identity, and cites this as further evidence of bad faith.
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 mark, with the omission of a space and the addition of “https” and the “.com” top-level domain. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Capital One Financial Corp. v. Dan Pham, FA 1615037 (Forum May 26, 2015) (finding <businesscapitalone.com> confusingly similar to CAPITAL ONE); Time Warner Inc. v. Zhichao Yang, FA 1500968 (Nat. Arb. Forum June 28, 2013) (finding <httptimewarnercable.com> confusingly similar to TIME WARNER CABLE). 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. Zhichao Yang, FA 1583407 (Nat. Arb. Forum Nov. 10, 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. Zhichao Yang, 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 <httpscapitalone.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 9, 2015
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