DECISION

 

Capital One Financial Corp. v. Huang Li Technology Corp c/o Dynadot

Claim Number: FA1505001620197

 

PARTIES

Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA.  Respondent is Huang Li Technology Corp c/o Dynadot (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <capitalonebnak.com>, registered with Dynadot, LLC.

 

PANEL

The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 19, 2015; the Forum received payment on May 19, 2015.

 

On May 20, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <capitalonebnak.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 May 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 9, 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@capitalonebnak.com.  Also on May 20, 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 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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.

 

RELIEF SOUGHT

Complainant requests the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant owns the capital one Bank mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,993,433, registered July 12, 2011). 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 <capitalonebnak.com> domain name is confusingly similar to the CAPITAL ONE BANK mark. The domain name contains Complainant’s mark in full, removes the space between “capital,” “one,” and “bank.” The domain name misspells the word “bank,” by transposing the letters “a” and “n,” and attaches the generic top-level domain (“gTLD”) “.com” to the domain name.

 

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 <capitalonebnak.com> 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 makes a deliberate attempt to pass itself off as an official website of Complainant.

 

Respondent has engaged in bad faith registration and use of the <capitalonebnak.com> domain name. Respondent’s use of the disputed domain name results in a disruption of Complainant’s business.  Further, Respondent uses the disputed domain to pass itself off as an official website of Complainant, for its own commercial gain. 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(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.

 

DISCUSSION

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 prove the following three elements to obtain an order cancelling or transferring a domain name:

 

(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.”).

 

Identical and/or Confusingly Similar

Complainant owns the capital one Bank mark because of its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,993,433, registered July 12, 2011). Complainant offers financial products and services to consumers, small businesses, and commercial clients.  Complainant uses the CAPITAL ONE BANK mark to promote its goods and services. Complainant’s valid registration of the CAPITAL ONE BANK mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)).  It should be noted Respondent is located within the United States.

 

Complainant claims the <capitalonebnak.com> domain name is confusingly similar to the CAPITAL ONE BANK mark. The domain name contains Complainant’s mark in full, removes the space between “capital,” “one,” and “bank.” The domain name misspells the word “bank” by transposing the letters “a” and “n,” and attaches the gTLD “.com” to the domain name. The removal of spaces from a mark leaves the resulting domain name confusingly similar to the mark under Policy ¶4(a)(i) because spaces are not valid characters in a domain name.  The addition of a gTLD also leaves the resulting domain name confusingly similar to the mark under Policy ¶4(a)(i) because domain name syntax requires a gTLD (or ccTLD). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶4(a)(i)). To hold otherwise would be to eviscerate the UDRP.  Misspelling a complainant’s mark (particularly not one of the beginning letters) results in a domain name that is likely confusingly similar to the mark under Policy ¶4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”). The disputed domain name is confusingly similar under Policy ¶4(a)(i).

 

The Panel finds Policy ¶4(a)(i) satisfied.

 

Rights or Legitimate Interests

Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii).  Then the burden shifts to Respondent to show it has 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. 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 claims Respondent has no rights or legitimate interests in the disputed domain name. Specifically, Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS record for the <capitalonebnak.com> domain name. The WHOIS information lists “Huang Li Technology Corp c/o Dynadot” as the registrant of record. This has no obvious relationship to the domain name. Complainant has never authorized Respondent to use the CAPITAL ONE BANK trademark, nor use the mark as a domain name. These claims are sufficient to initially establish Respondent’s lack of rights to the disputed domain name. 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 not asserted any contrary facts.

 

Complainant claims 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 deliberately attempts to pass itself off as an official website of Complainant (in part by saying “Capital One Visitor Survey”). Respondent’s resolving website features a message asking visitors to “participate in a short 30-second survey about Capital One” and uses the words “Capital One” in the heading of the survey. Such attempts to impersonate Complainant (and likely phish for customer data) constitute evidence a respondent lacks a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). 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).

 

The Panel finds Policy ¶4(a)(ii) satisfied.

 

Registration and Use in Bad Faith

Complainant claims Respondent’s use of the disputed domain name disrupts Complainant’s business. Respondent provides misleading information about Complainant through the disputed domain name and offers “an exclusive reward worth at least $50.00”, resulting in confusion and disruption. Respondent’s attempts to pass itself off as Complainant to disrupt Complainant’s business and constitute bad faith registration and use under Policy ¶4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶4(b)(iii)). Respondent has engaged in bad faith pursuant to Policy ¶4(b)(iii).

 

Complainant claims Respondent uses the disputed domain to pass itself off as an official website of Complainant, for its own commercial gain. Respondent’s domain name causes consumer confusion, presumably for Respondent’s financial benefit, which is evidence of bath faith under Policy ¶4(b)(iv). It appears Respondent is on a phishing expedition to get information about Complainant’s customers, which is evidence of bad faith per Policy ¶4(b)(iv). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). There is bad faith under Policy ¶4(b)(iv).

 

The Panel finds Policy ¶4(a)(iii) satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.

 

Accordingly, it is Ordered the <capitalonebnak.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Tuesday, June 16, 2015

 

 

 

 

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