Capital One Financial Corp. v. Gene Vozzola
Claim Number: FA1901001827391
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Gene Vozzola (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com>, registered with eNom, 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 29, 2019; the Forum received payment on January 29, 2019.
On January 29, 2019, eNom, LLC confirmed by e-mail to the Forum that the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names are registered with eNom, LLC and that Respondent is the current registrant of the names. eNom, LLC has verified that Respondent is bound by the eNom, 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 February 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2019 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@capiialone.com, postmaster@capipalone.com, postmaster@capitaaone.com, postmaster@capitealone.com, postmaster@capptalone.com, and postmaster@ccpitalone.com. Also on February 1, 2019, 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 February 15, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant offers a broad spectrum of financial products and services to consumers, small businesses and commercial clients. Complainant has rights in the CAPITAL ONE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,065,992, registered May 27, 1997). Respondent’s <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names are confusingly similar to Complainant’s mark as they are simple misspellings or typographical errors that an Internet user might make when typing in Complainant’s mark. All of the domain names also add the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain names to offer sponsored listings which link Internet users both to Complainant’s own website and websites affiliated with Complainant’s competitors.
Respondent registered and uses the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names in bad faith. Respondent’s use of the domain names to offer competing click-through links results in a disruption of Complainant’s business and intentionally attracts Internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Further, Respondent registered the domain names using a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names.
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.”).
Complainant claims rights in the CAPITAL ONE mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,065,992, registered May 27, 1997). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel finds that Complainant has established rights in the CAPITAL ONE mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names are confusingly similar to Complainant’s mark as they contain misspellings or typographical errors and add the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”); see also WordPress Foundation v. Bernat Lubos, FA 1613444 (Forum May 21, 2015) (“A minor misspelling is not normally sufficient to distinguish a disputed domain name from a complainant’s mark.”). Here, the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capptalone.com>, and <ccpitalone.com> domain names each change one letter and add the “.com” gTLD. The final domain name, <capitealone.com>, adds the letter “e” to the term “capital” in Complainant’s mark while also adding the “.com” gTLD. The Panel finds that the disputed domain names are confusingly similar to Complainant’s CAPITAL ONE mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS information identifies “Gene Vozzola” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the CAPITAL ONE mark or any of the domain names. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain names prior to their registration, and Complainant has not given Respondent permission to use the mark in any manner. The Panel finds that Respondent is not commonly known by the at-issue domain names under Policy ¶ 4(c)(ii).
Complainant argues that Respondent uses the domain names to offer sponsored listings which link Internet users both to Complainant’s own website and websites affiliated with Complainant’s competitors. Using a domain name to offer links to a complainant or to services in direct competition with a complainant generally does not amount to any bona fide offering of goods or services or a legitimate noncommercial or fair use. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the resolving webpages associated with the domain names, which display links such as “Capital One Credit,” “Sign In,” and “Credit Cards.” The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name for the purposes of Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant claims that Respondent’s use of the domain names to offer competing click-through links results in a disruption of Complainant’s business and intentionally attracts Internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). As noted above, Complainant provides screenshots of the resolving webpages associated with the domain names, which display links such as “Capital One Credit,” “Sign In,” and “Credit Cards.” The Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark and registered and uses the domain names in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <capiialone.com>, <capipalone.com>, <capitaaone.com>, <capitealone.com>, <capptalone.com>, and <ccpitalone.com> domain names be TRANSFERRED from Respondent to Complainant.
________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: February 26, 2019
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