Capital One Financial Corp. v. shilei
Claim Number: FA1505001620200
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is shilei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonewalet.com>, registered with Hangzhou AiMing Network Co., LTD.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2015; the Forum received payment on May 19, 2015. The Complaint was submitted in both English and Chinese.
On May 19, 2015, Hangzhou AiMing Network Co., LTD confirmed by e-mail to the Forum that the <capitalonewalet.com> domain name is registered with Hangzhou AiMing Network Co., LTD and that Respondent is the current registrant of the name. Hangzhou AiMing Network Co., LTD has verified that Respondent is bound by the Hangzhou AiMing Network Co., LTD 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 21, 2015, the Forum served the Chinese Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of June 10, 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@capitalonewalet.com. Also on May 21, 2015, the Chinese 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 June 16, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 states that it owns the CAPITAL ONE mark in numerous versions through 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 <capitalonewalet.com> domain name is confusingly similar to the CAPITAL ONE mark. The domain name contains Complainant’s mark in full, adds the generic term “walet,” and attaches the generic top-level domain (“gTLD”) “.com” to the domain name.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS record for the <capitalonewalet.com> domain name. Further, Complainant has never authorized Respondent to use the CAPITAL ONE trademark, nor use the mark as a domain name. Respondent’s lack of rights or legitimate interests in the disputed domain name is made further evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website. See Compl., at Attached Ex. C.
Finally, Complainant contends that Respondent has engaged in bad faith registration and use of the <capitalonewalet.com> domain name. Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the disputed domain name on October 1, 2014.
As the Respondent has failed to file a response in this matter, the Panel shall make its determination based on the undisputed and reasonable claims of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. The Panel also finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. Finally, the Panel finds that the Respondent engaged in bad faith use and registration of the disputed domain name.
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 is confusingly similar to the Complainant’s famous trademark. The Complainant has registered the trademark in the United States and many foreign countries. It clearly has a significant commercial interest in and to this trademark.
Respondent’s disputed domain name is derived by simply adding the generic word “walet” to the end of the famous CAPITAL ONE trademark and attaching the suffix of a gTLD. com. As “walet” is not a word in the English language, the Panel presumes the Respondent meant to register “wallet”. Therefore, calling this a generic word is inaccurate. The Respondent’s disputed domain name is better characterized as random letters that appear to form an English word. Unless, of course, the Respondent meant to register an obscure word for a “Jack” in a deck of cards or a swallow-like bird primarily found in Indonesia. Regardless of the intent as either a misspelled common word or an obscure reference to uncommon objects or species, this is insufficient to distinguish the disputed domain name from the famous trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s famous trademark.
The Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS record for the <capitalonewalet.com> domain name. The WHOIS information for the disputed domain names lists “shilei” as the registrant of record. See Compl., at Attached Ex. B. Further, Complainant states that it has never authorized Respondent to use the CAPITAL ONE trademark, nor use the mark as a domain name. These contentions are sufficient to establish Respondent’s lack of rights to the disputed domain name.
Complainant also asserts that Respondent’s lack of rights or legitimate interests in the disputed domain name is made further evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues that Respondent’s disputed domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website. See Compl., at Attached Ex. C. Internet users may click on links to “American Express,” “Bank of America,” “Chase,” and “Citibank.” Id. Prior panels have found that a respondent’s use of competing hyperlinks is neither a bona fide offering of goods or services nor for a legitimate noncommercial or fair use. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Therefore, the Panel concludes that Respondent’s actions are not a bona fide offering of goods or services under Policy ¶ 4(c)(i). The Respondent presumably attempts to profit through click-through fees; therefore, there can logically be no “noncommercial or fair use” pursuant to Policy ¶ 4(c)(iii).
The Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Complainant asserts that Respondent uses pay-per-click hyperlinks on its resolving website, which redirect users to various third-party websites. Internet users may click on links such as “American Express” or “Chase,” Complainant’s competitors, and, thereby be misdirected by Respondent’s misleading domain name. See Compl., at Attached Ex. C. Previous panels have found that the use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Consequently, this Panel finds that the Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant further argues that Respondent intentionally attracts, for commercial gain, Internet users to its own website by creating a likelihood of confusion with Complainant’s mark. Complainant contends that Respondent’s disputed domain name houses a website with a search engine and directory, where Respondent provides links to Complainant’s own business as well as other financial institutions, such as “Visa,” “MasterCard,” and “CitiBank.” See Compl., at Attached Ex. C. Complainant contends that Respondent presumably receives “click through” fees through the use of its disputed domain name, and registered the disputed domain name to attract and mislead consumers for its own profit. Prior panels have found that hyperlinks are typically associated with referral fees, and a respondent’s use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Therefore, the Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <capitalonewalet.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: June 18, 2015
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