Capital One Financial Corp. v. Dewaldt Botha
Claim Number: FA1706001737107
Complainant is Capital One Financial Corp. ("Complainant"), represented by John Gary Maynard, Virginia, USA. Respondent is Dewaldt Botha ("Respondent"), South Africa.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capital1debt.com>, registered with Hosting Concepts B.V. d/b/a Openprovider ("OpenProvider").
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 June 23, 2017; the Forum received payment on June 23, 2017.
On June 27, 2017, Openprovider confirmed by email to the Forum that the <capital1debt.com> domain name is registered with Openprovider and that Respondent is the current registrant of the name. Openprovider has verified that Respondent is bound by the Openprovider 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 June 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 2017 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@capital1debt.com. Also on June 27, 2017, 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 July 20, 2017, 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 <capital1debt.com>, registered in November 2016, 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 that promotes financial and loan services that compete with those offered by Complainant, and that the registration number displayed on the website is not valid.
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 (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, substituting the numeral "1" for the word "ONE," and adding the generic term "debt" and the ".com" top-level domain. These modifications do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Capital One Financial Corp. v. Jeroen van't Hoff / HarperJones, FA 1718606 (Forum Apr. 26, 2017) (finding <capital1investments.com> confusingly similar to CAPITAL ONE). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates a variant form of Complainant's registered mark without authorization. It is not clear to the Panel whether Respondent is attempting to market competing financial services, to generate sales leads and referral revenue, or to harvest personal information from Internet users. Respondent's failure to participate in this proceeding and the apparently invalid registration number contained on Respondent's website suggest that Respondent is not engaged in a legitimate use of the domain name. In any event, none of the activities set forth above would likely give rise to rights or legitimate interests under the Policy.
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 is being 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 and use of a domain name obviously intended to create confusion with Complainant is indicative of bad faith under the Policy. See, e.g., Quicken Loans Inc. v. Domain Admin / Whois Privacy Corp., supra. The Panel infers that Respondent was aware of Complainant and its mark, considering Complainant's prominence in the financial service industry and the suspicious similarity between the two parties' logos:
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 <capital1debt.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 27, 2017
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