Capital One Financial Corp. v. CUSTOMER SUPPORT
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is CUSTOMER SUPPORT (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonefocusfuture.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.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 14, 2015; the Forum received payment on July 14, 2015.
On July 14, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <capitalonefocusfuture.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 July 14, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 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@capitalonefocusfuture.net. Also on July 14, 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 August 4, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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
The Complainant's contentions can be summarised as follows:
The Complainant is a major financial institution founded in 1988 and has used its CAPITAL ONE mark since inception.
Complainant owns registrations for CAPITAL ONE all over the world and in the United States for banking and financial services.
The Domain Name is confusingly similar to the Complainant's CAPITAL ONE mark. The Domain Name contains the Complainant’s mark in its entirety and simply adds the generic terms 'focus' and ‘future’ which directly relate to the Complainant's business. This plus the gTLD .net is insufficient to distinguish a disputed domain name and a mark.
The Respondent has no rights or legitimate interests in respect of the Domain Name. It is not commonly known by the Domain Name. Complainant has never authorised Respondent to use its CAPITAL ONE mark and Respondent is not a licensee of the Complainant. Respondent uses the Domain Name to divert Internet users seeking the Complainant’s web site to Respondent's web site for commercial gain. This is not a bona fide offering of goods or services or a legitimate non-commercial or fair use.
The Domain Name was registered and is being used in bad faith. The Domain Name houses a web site seeking to obtain personal identifying information. This results in a disruption of Complainant's business and intentionally attracts Internet users to Respondent's web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent's site. In addition the Respondent registered the Domain Name with a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is a financial institution founded in 1988 and has used its CAPITAL ONE mark since inception. It owns registrations for CAPITAL ONE all over the world and in the United States for banking and financial services.
The Domain Name was registered in 2014 and houses a web site seeking to obtain personal identifying information.
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 Domain Name consists of the Complainant's CAPITAL ONE mark, the generic terms 'focus' and 'future ‘and the gTLD .net.
Prior panels have found that adding generic terms does little to remove confusing similarity from a disputed mark. See Disney Enters. Inc v McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding disneyvacationvillas.com to be confusingly similar to the Complainant’s DISNEY mark because it incorporated the Complainant's mark in its entirety and merely added two terms to it.)
The gTLD .net does not serve to distinguish the Domain Name from the CAPITAL ONE mark, which is the distinctive component of the Domain Names. See Red Hat Inc v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panelist holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panelist holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not commonly known by the Domain Name, is not using it to offer bona fide goods and services and is not making a legitimate non-commercial or fair use of the name.
Respondent is using the Domain Name to divert Internet users seeking the Complainant's web site to Respondent's web site for pecuniary gain in that is seeks to obtain and sell user’s personal information, conduct known as 'phishing'. Prior panels have found that 'phishing' is not bona fide offering of goods and services under Policy 4 (c)(i) See Blackstone TM LLC v Mita Irelant Ltd., FA 1314998 (Nat Arb Forum Apr. 30, 2010).('The Panel finds that Respondent’s attempt to 'phish' for user’s personal information is neither a bona fide offering of goods and services pursuant to Policy 4 (c) (i), nor a legitimate non-commercial or fair use pursuant to Policy 4 (c) (iii).)
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The site is gathering customer information using the Complainant’s mark. See Capital FIn. Corp. & Capital One Bank v Howel FA 289304 (Nat. Arb, Forum Aug. 11, 2003) (Holding that as the capitalonebank.biz domain name was confusingly similar to Complainant’s mark, it was being used to acquire personal information from Complainant’s clients constituting bad faith registration and use. ) See Wells Fargo & Co. v Maniac State, FA 608239 (Nat. Arb. Forum Jan 19, 2006)(Finding bad faith registration and use where respondent was using the wellsbankupdate.com domain name in order to fraudulently acquire the personal and financial information of the Complainant’s customers.)
As such, the Panelist holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonefocusfuture.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: 18 August, 2015
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