Capital One Financial Corp. v. Kevin Newman
Claim Number: FA1504001615033
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Kevin Newman (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonecredicard.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2015; the Forum received payment on April 17, 2015.
On April 17, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <capitalonecredicard.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 April 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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@capitalonecredicard.com. Also on April 21, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 alleges that it the CAPITAL ONE trademark is registered in the United States and elsewhere and has become a famous appellation of Complainant’s business. Complainant alleges that the Respondent’s disputed domain name <capitalonecredicard.com> is confusingly similar to Complainant’s CAPITAL ONE trademark because Respondent’s domain name contains Complainant’s mark in its entirety and simply adds the misspelled generic term “credi” and the generic term “card.” Moreover, the additions of the generic terms “credi” and “card,” which directly relates to Complainant’s business, as well as the generic top-level domain “.com” to a domain name. These steps, the Complainant alleges are insufficient to distinguish a disputed domain name and a famous trademark.
Further, the Complainant claims that the Respondent has not rights or legitimate interests in or to the disputed domain name. The Respondent is not commonly known by the disputed domain name and the Respondent has not authorized or licensed the use of its famous trademark in this manner. Respondent’s lack of rights or legitimate interests in the disputed domain name is further evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name <capitalonecredicard.com> contains no content.
Finally, Complainant alleges that Respondent is using the disputed domain name <capitalonecredicard.com> to resolve to a blank or inactive page. Failure to actively use a domain name constitutes bad faith use and registration.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on October 10, 2005.
As the Respondent has failed to file a Response in this matter, the Panel shall decide this case based on the reasonable allegations of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s famous and registered trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent engaged in bad faith use and registration.
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.”).
The Respondent is clearly trying to take advantage of a misspelled word to create and association between the Complainant’s famous trademark and the disputed domain name. The Respondent arrives at the disputed domain name by merely misspelling “credit” as “credi” and adding the word “card” to Complainant’s famous trademark. This creates a likelihood of confusion between the disputed domain name and Complainant’s famous trademark.
As Respondent failed to file a Response in this matter, the Panel accepts as true Complainant’s allegations regarding the Respondent’s lack of rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name. See Complainant’s Exhibit B. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name <capitalonecredicard.com> contains no content. See Complainant’s Exhibit C.
As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
Complainant is right to point out that the disputed domain name resolves to an unused web page containing no content. Such an unpopulated web page arrived at by using a famous trademark raises the presumption of bad faith use and registration. Again, as the Respondent has failed to file a response in this matter to rebut this presumption, the Panel agrees with the Complainant and finds adequate evidence of bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <capitalonecredicard.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 20, 2015
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