Capital One Financial Corp. v. michal restl c/o Dynadot
Claim Number: FA1610001696469
Complainant is Capital One Financial Corp. ("Complainant"), represented by John Gary Maynard, Virginia, United States. Respondent is michal restl c/o Dynadot ("Respondent"), California, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonesignin.com>, registered with Dynadot, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 3, 2016; the Forum received payment on October 3, 2016.
On October 6, 2016, Dynadot, LLC confirmed by email to the Forum that the <capitalonesignin.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 October 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@capitalonesignin.com. Also on October 6, 2016, 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 November 1, 2016, 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 to promote its goods and services continuously since that date. Complainant holds trademark registrations for CAPITAL ONE and related marks in the United States and many other jurisdictions.
The disputed domain name <capitalonesignin.com> was registered by Respondent in 2014. Complainant states that Respondent is not commonly known by the disputed domain name, has never been authorized to use Complainant's mark, and is not a licensee of Complainant. Complainant states further that the domain name houses a website displaying a search engine and "related links"; selecting any of the "related links" results in the display of links to financial institutions, including some of Complainant's competitors. Complainant contends on these grounds that the disputed domain name is identical or confusingly similar to Complainant's mark; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in 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 is being 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(f), 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 <capitalonesignin.com> combines Complainant's registered trademark with the generic term "sign in" and the ".com" top-level domain, with the spaces omitted. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark for purposes of the Policy. See, e.g., Capital One Financial Corp. v. Sakar Ranjitkar / www.creditcardlogins.net, FA 1617706 (Forum June 15, 2015) (finding <capitalone-login.com> confusingly similar to CAPITAL ONE); Capital One Financial Corp. v. SANTOSH GHIMIRE / DO SURF IN P. LTD., FA 1615038 (Forum May 21, 2015) (finding <capitalonelogin.net> confusingly similar to CAPITAL ONE); Toronto-Dominion Bank v. michal restl c/o Dynadot Privacy, FA 1554490 (Nat. Arb. Forum May 27, 2014) (finding <tdbanksignin.com> confusingly similar to TD BANK); Discover Financial Services v. michal restl c/o Dynadot Privacy, FA 1534599 (Nat. Arb. Forum Jan. 24, 2014) (finding <discovercardlogon.com> confusingly similar to DISCOVER). The Panel finds that the disputed domain name is confusingly similar to Complainant's registered TOSHIBA 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).
Respondent registered a domain name combining Complainant's mark with a generic term relating to Complainant's business, and its only apparent use has been to display what presumably are pay-per-click links, including links to competitors of Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Toronto-Dominion Bank, supra; Discover Financial Services, supra.
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)(ii) of the Policy, bad faith may be shown by evidence that a domain name was registered "in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent] ha[s] engaged in a pattern of such conduct." Under paragraph 4(b)(iii), 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 registered a domain name that combines Complainant's mark with a generic term associated with Complainant's business. It appears to the Panel that Respondent is profiting by using the domain name to display pay-per-click links, including links to competitors of Complainant, and that Respondent registered the domain name with Complainant's mark and this particular use in mind. See, e.g., Toronto-Dominion Bank, supra (finding bad faith registration and use under paragraph 4(b)(iv) in similar circumstances); Discover Financial Services, supra (finding bad faith registration and use under paragraph 4(b)(iii) in similar circumstances). The Panel also notes that Respondent has been found in several previous proceedings under the Policy to have registered domain names in bad faith, suggesting a pattern of bad faith registrations, although it is not clear that Respondent's actions have prevented trademark owners from reflecting their marks in corresponding domain names. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonesignin.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 2, 2016
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