Capital One Financial Corp. v. Beka Tvalavadze
Claim Number: FA1403001549468
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Beka Tvalavadze (“Respondent”), Tbilisi, Georgia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitaloneonlinebillpay.com>, registered with GoDaddy.com, 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.
Darryl C. Wilson, as Panelist..
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2014; the National Arbitration Forum received payment on March 19, 2014.
On March 19, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <capitaloneonlinebillpay.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 20, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2014 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@capitaloneonlinebillpay.com. Also on March 20, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 16, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
1. Complainant is a major financial institution offering a broad spectrum of financial products and services to consumers, small business, and commercial clients. Complainant has been in business since 1988.
2. Complainant has rights in the CAPITAL ONE mark, used in connection with financial products and services. Complainant owns registrations for the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,992,626 registered Aug. 13, 1996).
3. Respondent’s <capitaloneonlinebillpay.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark. The disputed domain name incorporates Complainant’s mark in its entirety while adding the generic terms “online,” “bill,” and “pay” as well as the generic top-level domain (“gTLD”) “.com.”
4. Respondent does not have any rights or legitimate interests in the <capitaloneonlinebillpay.com> domain name.
a. Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its CAPITAL ONE mark in any way.
b. The <capitaloneonlinebillpay.com> domain name resolves to a parked page displaying a search engine and “sponsored listings.” See Complainant’s Exhibit C. Specifically, the resolving website provides links to other competing financial institutions. Id.
5. Respondent registered and is using the <capitaloneonlinebillpay.com> domain name in bad faith.
a. Respondent is disrupting Complainant’s business by using to the disputed domain name to display a search engine and sponsored listings to third-party websites of Complainant’s competitors. See Complainant’s Exhibit C.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Capital One Financial Corp. of Richmond VA, USA. Complainant owns numerous domestic and international registrations for the mark CAPITAL ONE and related marks comprising the family of CAPITAL ONE marks. Complainant has continuously used its marks since at least its 1997 USA registration in connection with the provision of a broad spectrum of banking and financial services.
Respondent is Beka Tvalavadze of Tbilisi, Georgia. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that Respondent registered the <capitaloneonlinebillpay.com> domain name on or about May 5, 2013. Respondent did not submit a formal Response in this case. However, in an e-mail sent after receiving notice of the UDRP proceedings, Respondent stated the following: “You can remove domain name <capitaloneonlinebillpay.com> from my account, I don't use it. Or turn off Lock and I'll delete it from my account.”
Preliminary Issue: Consent to Transfer
The National Arbitration Forum received an email from Respondent, which is identified in this proceeding as “Other Correspondence.” In this document, Respondent purports to consent to the transfer of the <capitaloneonlinebillpay.com> domain name. As a result of Respondent’s statements regarding the disputed domain name, the Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel may forego the traditional UDRP analysis and order an immediate transfer of the <capitaloneonlinebillpay.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the 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(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.”).
See above; Preliminary issue: Consent to Transfer
Respondent has consented to transfer the disputed domain name.
See above; Preliminary issue: Consent to Transfer
See above; Preliminary issue: Consent to Transfer
Respondent has consented to transfer the disputed domain name.
Because the Respondent has consented to transfer the disputed domain name the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <capitaloneonlinebillpay.com> domain name be immediately TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 30, 2014
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