Capital One Financial Corp. v. CUSTOMER SUPPORT
Claim Number: FA1505001617683
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is CUSTOMER SUPPORT (“Respondent”), Connecticut, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonetrendsfuture.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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 4, 2015; the Forum received payment on May 4, 2015.
On May 4, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <capitalonetrendsfuture.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 May 5, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 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@capitalonetrendsfuture.net. Also on May 5, 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 June 1, 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 owns the CAPITAL ONE mark in numerous versions through the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,442,400, registered June 3, 2008). Complainant offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE mark to promote its goods and services. The <capitalonetrendsfuture.net> domain name is confusingly similar to the CAPITAL ONE mark. The domain name contains Complainant’s mark in full, adds the generic term “trends” and “future,” and attaches the generic top-level domain (“gTLD”) “.net” to the domain name.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS record for the <capitalonetrendsfuture.net> domain name. Further, Complainant has never authorized Respondent to use the CAPITAL ONE trademark, nor use the mark as a domain name. Respondent’s lack of rights or legitimate interests in the disputed domain name is made further evident 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 diverts Internet users seeking Complainant’s website to Respondent’s website for Respondent’s pecuniary gain. See Compl., at Attached Ex. C.
Respondent has engaged in bad faith registration and use of the <capitalonetrendsfuture.net> domain name. Respondent uses the disputed domain to divert Internet customers seeking Complainant’s website to Respondent’s website. Further, Respondent seeks to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the disputed domain name on July 17, 2014.
As the Respondent has failed to file a Response in this matter, the Panel makes its determination based on the undisputed and reasonable allegations of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s famous 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 of the disputed domain name.
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 asserts that it owns the CAPITAL ONE mark in numerous versions through the USPTO (e.g., Reg. No. 3,442,400, registered June 3, 2008). Complainant states that it offers financial products and services to consumers, small businesses, and commercial clients and uses the CAPITAL ONE mark to promote its goods and services. Complainant’s valid registration of the CAPITAL ONE mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).
Complainant argues that the <capitalonetrendsfuture.net> domain name is confusingly similar to the CAPITAL ONE mark. The domain name contains Complainant’s mark in full, adds the generic words “trends” and “future,” and attaches the gTLD “.net” to the domain name. Adding generic words or terms does little to remove confusing similarity from the disputed domain name. See Disney Enters. Inc. v. McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding the <disneyvacationvillas.com> domain name to be confusingly similar to Complainant’s DISNEY mark because it incorporated Complainant’s entire famous mark and merely added two terms to it). Furthermore, the addition of a gTLD does not serve to adequately distinguish the disputed domain name from the registered mark. See OL Inc. v. Morgan, FA 1349260 (Nat. Arb. Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark).
Accordingly, the Panel finds that the disputed domain name is confusingly similar under Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant argues that Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS record for the <capitalonetrendsfuture.net> domain name. The WHOIS information for the disputed domain names lists “CUSTOMER SUPPORT” as the registrant of record. See Compl., at Attached Ex. B. Further, Complainant states that it has never authorized Respondent to use the CAPITAL ONE trademark, nor use the mark as a domain name.
These contentions are sufficient to establish Respondent’s lack of rights to the disputed domain name.
Complainant asserts that Respondent’s lack of rights or legitimate interests in the disputed domain name is made further evident 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. Complainant argues that Respondent’s disputed domain name diverts Internet users seeking Complainant’s website to Respondent’s website for Respondent’s pecuniary gain. See Compl., at Attached Ex. C. Previous panels have found that a confusingly similar domain name, used to divert Internet users for commercial gain, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Accordingly, this Panel finds that Respondent has failed to demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use, Respondent has not established rights or legitimate interests in respect of the domain name pursuant to Policy ¦ 4(a)(ii).
Complainant alleges that Respondent uses the disputed domain to divert Internet customers seeking Complainant’s website to Respondent’s website. Complainant argues that Respondent uses the disputed domain name to seek personal information from Internet users, which results in a disruption of Complaint’s business. Past panels have found respondents who intentionally divert a complainant’s customers engage in bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Therefore, the Panel finds that the Respondent’s diversionary tactics is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Further, Complainant asserts that Respondent seeks to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Complainant claims that Respondent is benefitting from the valuable goodwill that Complainant has established in its mark, as it attempts to profit from the sale or rent of users’ personal information. See Comp., at Attached Ex. D. Previous panels have found that respondents who attempt to profit from the likelihood of confusion with a complainant’s mark engage in bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Accordingly, the Panel finds that Respondent has engaged in bad faith use and registration under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <capitalonetrendsfuture.net> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: June 2, 2015
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