Capital One Financial Corp. v. Max Haynes / Nls
Claim Number: FA1605001676676
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Max Haynes / Nls (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sparkspay.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits here as Panelist.
Complainant submitted a Complaint to the Forum electronically May 26, 2016; the Forum received payment May 26, 2016.
On May 26, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <sparkspay.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and 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 26, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 15, 2016, 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@sparkspay.com. Also on May 26, 2016, 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 June 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit here as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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.
Complainant’s Contentions in This Proceeding:
Complainant established rights in the SPARK PAY mark by virtue of its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,412,228, registered Oct. 1, 2013). Respondent’s <sparkspay.com> domain name is confusingly similar to the SPARK PAY mark as it merely adds the letter “s,” to the “SPARK” portion of the mark while eliminating spacing between words of the mark, and appending the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <sparkspay.com> domain name. Respondent is not commonly known by the <sparkspay.com> domain name. Further, Respondent has not used the <sparkspay.com> domain name in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, the website resolves to an inactively held webpage.
Respondent registered the <sparkspay.com> domain name and passively held it in bad faith under a Policy ¶ 4(a)(iii) analysis.
Respondent’s Contentions in This Proceeding:
Respondent did not submit a response for consideration in this proceeding. The Panel notes that Respondent registered the <sparkspay.com> domain name November 13, 2014.
Complainant established rights and legitimate interests in the disputed domain name as well as the protected mark contained within it.
Respondent has no such rights or legitimate interests in the mark or the
disputed domain name.
Respondent registered a disputed domain name that is confusingly similar to Complainant’s protected mark.
Respondent registered and used the disputed domain name 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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant provides the panel with evidence that it established rights in the SPARK PAY mark by virtue of its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,412,228, registered Oct. 1, 2013). See Compl., at Attached Exhibit A. Registration with the USPTO has been consistently held to establish rights in a mark for the registering party. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Therefore, this Panel agrees that Complainant established rights in the SPARK PAY mark under Policy ¶ 4(a)(i).
Complainant asserts Respondent’s <sparkspay.com> domain name is confusingly similar to the SPARK PAY mark as it merely adds the letter “s,” to the “SPARK” portion of the mark while eliminating spacing between words of the mark, and appending the “.com” gTLD. Panels have seen such alterations as insufficient to overcome a finding of confusing similarity. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
Therefore, this Panel agrees that Respondent’s <sparkspay.com> domain name is confusingly similar to Complainant’s SPARK PAY mark under Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a disputed domain name that is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights and Legitimate Interests:
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), and then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent has no rights or legitimate interests in the <sparkspay.com> domain name. Complainant argues that Respondent is not commonly known by the <sparkspay.com> domain name. Respondent is listed as “Max Haynes” in the publicly available WHOIS information. Respondent has not rebutted Complainant’s arguments and proof, therefore, this Panel finds that Complainant successfully showed satisfaction of Policy ¶ 4(c)(ii). 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).
Further, Complainant argues that Respondent has not used the <sparkspay.com> domain name in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, the website resolves to an inactive webpage, displaying message, “OOPS!!! This site is currently unavailable.” See Compl., at Attached Ex. C. The Panel agrees with Complainant’s submitted evidence and notes Respondent’s statements at the site and finds that Complainant established a prima facie case under Policy ¶ 4(a)(ii). See, e.g., George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name containing Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), the Panel notes that these provisions are meant to be illustrative of bad faith, and Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant argues that Respondent registered the <sparkspay.com> domain name and used it in bad faith. Complainant asserts that Respondent inactively held the disputed domain name, constituting non-exclusive evidence of bad faith under Policy ¶ 4(a)(iii). The panel in Am. Broad. Cos., Inc. v. Sech, FA 893427 (Forum Feb. 28, 2007) concluded that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith. This Panel finds that the facts support findings that Respondent registered and passively held the disputed domain name in bad faith under a Policy ¶ 4(a)(iii) analysis.
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and passively held the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED
Accordingly, it is Ordered that the <sparkspay.com> domain be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 1, 2016
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