Capital One Financial Corp. v. Emmie Littlejohn / gyumbertrte
Claim Number: FA1501001599892
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia. Respondent is Emmie Littlejohn / gyumbertrte (“Respondent”), Michigan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonebank-alerts.com>, registered with NETWORK SOLUTIONS, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 15, 2015; the National Arbitration Forum received payment on January 15, 2015.
On January 15, 2015, NETWORK SOLUTIONS, LLC. confirmed by e-mail to the National Arbitration Forum that the <capitalonebank-alerts.com> domain name is registered with NETWORK SOLUTIONS, LLC. and that Respondent is the current registrant of the name. NETWORK SOLUTIONS, LLC. has verified that Respondent is bound by the NETWORK SOLUTIONS, 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 January 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 4, 2015 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@capitalonebank-alerts.com. Also on January 15, 2015, 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 February 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant owns the CAPITAL ONE BANK mark in numerous versions through the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,419,972, registered April 29, 2008). Complainant offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE BANK mark to promote its goods and services. The <capitalonebank-alerts.com> domain name is confusingly similar to the CAPITAL ONE mark. The domain name contains Complainant’s mark in its entirety, inserts a hyphen, adds the generic term “alerts,” and adds the gTLD “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the CAPITAL ONE BANK mark. Respondent has failed to use the <capitalonebank-alerts.com> domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain name redirects Internet users to a website that displays related links, many of which are competitors of Complainant.
Respondent has engaged in bad faith registration and use of the <capitalonebank-alerts.com> domain name under Policy ¶ 4(a)(iii). Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet users seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Capital One Financial Corp., owns the CAPITAL ONE BANK mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,419,972, registered April 29, 2008). Complainant offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE BANK mark to promote its goods and services.
Respondent, Emmie Littlejohn / gyumbertrte, registered the <capitalonebank-alerts.com> domain name on July 5, 2014. Respondent’s disputed domain name redirects Internet users to a website that displays links to Complainant’s competitors.
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.”).
Complainant owns the CAPITAL ONE BANK mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Metro. Life Ins. Co. v. Glu, FA 874496 (Nat. Arb. Forum Feb. 13, 2007) (finding that the complainant had rights in the METLIFE mark as a result of its registration of the mark with the United States federal trademark authority).
The <capitalonebank-alerts.com> domain name is confusingly similar to the CAPITAL ONE mark under Policy ¶ 4(a)(i). The domain name contains Complainant’s mark in its entirety, inserts a hyphen, adds the generic term “alerts,” and adds the gTLD “.com.” The addition of a punctuation mark, such as a hyphen, does not sufficiently differentiate the disputed domain name from complainant’s registered trademark. See Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). The addition of generic terms to a mark does not distinguish the disputed domain name from a complainant’s registered trademark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term). Further, the addition of a gTLD does not adequately distinguish the disputed domain name from the registered mark. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
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 shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. 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).
Respondent has no rights or legitimate interests in the <capitalonebank-alerts.com> domain name. Specifically, Complainant is not commonly known by the domain name. The WHOIS information for the domain name lists “Emmie Littlejohn” as the registrant. Complainant has not authorized Respondent to use the CAPITAL ONE BANK mark. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent has failed to use the <capitalonebank-alerts.com> domain name in connection with a bona fide offering of goods or services under Policy ¶4(c)(i), or for a legitimate noncommercial or fair use under Policy ¶4(c)(iii). Respondent’s disputed domain name redirects Internet customers to a website featuring a search engine and links to other financial institutions, including some of Complainant’s competitors. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Respondent has engaged in bad faith registration and use of the <capitalonebank-alerts.com> domain name. Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii) by offering links to competing financial institutions. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark, thus demonstrating bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
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 <capitalonebank-alerts.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 25, 2015
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