Capital One Financial Corp. v. Zhichao Yang
Claim Number: FA1511001647371
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonebenefits.com>, registered with Name.com, Inc..
The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 17, 2015; the Forum received payment on November 17, 2015.
On Nov 17, 2015, Name.com, Inc. confirmed by e-mail to the Forum that the <capitalonebenefits.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 November 18, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 8, 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@capitalonebenefits.com. Also on November 18, 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 December 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 uses the CAPITAL ONE mark with its business as a financial institution offering a variety of products and services to consumers, small businesses, and commercial clientele. Complainant’s registration of the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”) shows its rights in the mark (e.g., Reg. No. 3,989,909, registered July 5, 2011). The <capitalonebenefits.com> domain is confusingly similar to the CAPITAL ONE mark as the domain merely adds the generic term “benefits” along with the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <capitalonebenefits.com> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to register any variant of CAPITAL ONE in a domain name. Further, Respondent is not making a bona fide offering of goods or services through the disputed domain name, nor a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a generic landing page hosting commercial links some of which are related to Complainant’s business.
Respondent registered and is using the disputed domain name in bad faith. Respondent’s use of competing commercial links demonstrates bad faith through competing and disrupting Complainant’s business as well as attracting and confusing internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant uses the CAPITAL ONE mark with its business as a financial institution offering a variety of products and services to consumers, small businesses, and commercial clientele. Complainant has rights in the CAPITAL ONE mark under Policy ¶ 4(a)(i) through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,989,909, registered July 5, 2011). The <capitalonebenefits.com> domain is confusingly similar to the CAPITAL ONE mark as the domain merely adds the generic term “benefits” along with the generic top-level domain (“gTLD”) “.com.”
Respondent registered the <capitalonebenefits.com> domain name on March 1, 2013. Respondent’s domain name resolves to a generic landing page hosting commercial links some of which are related to Complainant’s business.
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 has rights in the CAPITAL ONE mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (finding that “Complainant’s timely registration with the USPTO and subsequent use of the BIG TOW mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <capitalonebenefits.com> domain is confusingly similar to the CAPITAL ONE mark under Policy ¶ 4(a)(i) as the domain adds the generic term “benefits” along with the generic top-level domain (“gTLD”) “.com.
Respondent is not commonly known by the <capitalonebenefits.com> domain name Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use its CAPITAL ONE mark. The WHOIS information lists the registrant of record as “Zhichao Yang.” See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Respondent’s domain resolves to a generic landing page hosting commercial links of which some are related to Complainant’s business. Links on Respondent’s domain include those titled, “Credit Card Debt Consolidation,” “Online Credit Card Application,” and “Employees Health Benefits.” Respondent is not using <capitalonebenefits.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
Respondent’s use of competing commercial links disrupts Complainant’s business and is bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Similarly, Respondent registered and uses the <capitalonebenefits.com> domain name bad faith under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonebenefits.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 21, 2015
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