Capital One Financial Corp. v. SANTOSH GHIMIRE / DO SURF IN P. LTD.
Claim Number: FA1504001615038
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is SANTOSH GHIMIRE / DO SURF IN P. LTD. (“Respondent”), Nepal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonelogin.net>, registered with ENOM, INC.
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.
Richard Hill 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, ENOM, INC. confirmed by e-mail to the Forum that the <capitalonelogin.net> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 12, 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@capitalonelogin.net. Also on April 22, 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 Richard Hill 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 states that it owns numerous registered trademarks, dating back to 1995, for the mark CAPITAL ONE. The mark is well known and it is used by Complainant to market a range of banking and financial services around the world.
According to Complainant, the disputed domain name is confusingly similar to its mark because Respondent’s domain name contains Complainant’s mark in its entirety and simply adds the term “login.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the disputed domain name. Complainant has never authorized Respondent to use its mark and Respondent is not a licensee of Complainant. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial of faire use. On the contrary, Respondent makes a deliberate attempt to pass of the web site at the disputed domain name as an official web site of Complainant. This cannot be considered to be a legitimate use of the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith because the web site at the disputed domain name uses Complainant’s trademark in countless locations. Thus Respondent is attempting to pass off its web site as being an official web site of Complainant. The information provided by Respondent is unverified and this results in disruption of Complainant’s business through the confusion caused by both the similarity between Complainant’s marks and the disputed domain name, and Respondent’s deliberate attempt to confuse consumers as to the nature of its web site. Complainant cites UDRP precedents to support its position.
Complainant additionally alleges that Respondent’s website provides links to third-party websites, some of which are owned by Complainant’s competitors, whereby, presumably, Respondent receives some form of monetary gain through the links found on the web page. This constitutes bad faith registration and use. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for numerous marks around the world that include the name CAPITAL ONE, dating back to 1995. Its marks are well-known in the financial industry.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2014.
The products and services offered by Complainant are widely used and well known.
Respondent is using the disputed domain names to resolve to a web site that uses Complainant’s mark and purports to provide information about Complainant, as well as offering links to web sites containing commercial links to products and services that compete with those of Complainant.
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 Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s mark because it consists of the mark and the common word “login” which relates to Complainant’s online services. See Gillette Co. v. RFK Assocs., FA 1492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see also Wells Fargo & Company v. Pinnacle Management Group, Inc., FA1272346 (Nat. Arb. Forum August 18, 2009) (The addition of the terms “merchant services” which relate to Complainant’s business, does not distinguish the disputed domain name from Complainant’s mark. Moreover, the addition of the generic top-level domain (gTLD”) “.com” also does not sufficiently distinguish the disputed domain name from Complainant’s mark as a top-level domain is a required element of all Internet domain names.);
Respondent is using the disputed domain name to point to a website that uses Complainant’s mark and purports to provide information about Complainant.
The Panel finds that Respondent is disrupting Complainant’s business and so its use of the disputed domain name does not fall within the parameters of a bona fide offering of goods or services pursuant to ¶ 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to ¶ 4(c)(iii) of the Policy. See The Royal Bank of Scotland Group plc v. Onete Philip c/o Domain Registrar, FA 1222782 (Nat. Arb. Forum Oct. 20, 2008) (“Respondent is attempting to pass itself off as Complainant . . . The Panel determines that this establishes that Respondent registered and used the <rbsliverpool.com> domain name in bad faith for the purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. Capital funding, FA 1579521 (Nat. Arb. Forum October 16, 2014) (finding that “the confusingly similar at-issue domain name directs Internet users to Complainant’s official webpage, presumably for commercial gain. Using the domain name in this manner is 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).”);
It is clear to the Panel that Respondent was aware of Complainant’s mark when it registered and started using the disputed domain name, because the disputed domain name incorporates Complainant’s well-known mark and because Respondent’s web site makes use of Complainant’s mark.
Respondent (who did not reply to the Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, in the Panel’s view, Respondent’s actual use of the disputed domain name (as noted above) is clearly not bona fide, because Respondent uses the disputed domain name to provide unverified information about Complainant. This indicates that Respondent has registered and is using the disputed domain name to disrupt Complaint’s business. This constitutes bad faith registration and use under Policy ¶¶ 4(b)(iii) and 4(b)(iv). See Frank Russell Company v. Rommel Balingit, FA 1178430 (Nat. Arb. Forum May. 30, 2008) (“Respondent was, until recently, passing off the website that resolved from the disputed domain name as Complainant’s own website. Such use was presumably for Respondent’s commercial gain through an attempt to create confusion as to Complainant’s association with the disputed domain name and resulting website. The Panel finds that this use of the disputed domain name is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iv).”); see also The Royal Bank of Scotland Group plc v. Onete Philip c/o Domain Registrar, FA 1222782 (Nat. Arb. Forum Oct. 20, 2008) (“Respondent is attempting to pass itself off as Complainant . . . The Panel determines that this establishes that Respondent registered and used the <rbsliverpool.com> domain name in bad faith for the purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(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 <capitalonelogin.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 21, 2015
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