Capital One Financial Corp. v. Leonard Olsen / Hollis Company llc
Claim Number: FA1512001650474
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Leonard Olsen / Hollis Company llc (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonesupport.com>, registered with Key-Systems GmbH.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge, she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically December 2, 2015; the Forum received payment December 2, 2015.
On December 3, 2015, Key-Systems GmbH confirmed by e-mail to the Forum that the <capitalonesupport.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH verified that Respondent is bound by the Key-Systems GmbH registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 3, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 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@capitalonesupport.com. Also on December 3, 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 29, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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.
Complainant’s Allegations in this Proceeding:
Complainant registered CAPITAL ONE with the United States Patent and Trademark Office (“USPTO) (e.g., Reg. No. 1,992,626, registered Aug 13, 1996), which demonstrates its rights in the mark. The <capitalonesupport.com> domain name is confusingly similar to the CAPITAL ONE mark as the domain adds the generic term “support” and the “.com” generic top-level domain (“gTLD”).
Respondent has not been commonly known by the disputed domain name based on WHOIS information. Respondent’s use of the disputed domain, to provide click through links to Complainant’s business and Complainant’s competitors businesses, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent registered and is using the disputed domain name in bad faith. Respondent uses the domain to divert Internet users to a directory website that displays commercial links. This use demonstrates both an intention to attract and confuse Internet users for commercial profit and disruption of Complainant’s business.
Respondent:
Respondent did not submit a Response in this proceeding. The Panel notes that Respondent created the disputed domain May 1, 2014.
Complainant established rights to and legitimate interests in its well-known mark contained in its entirety within the disputed domain name.
Respondent has no such rights or legitimate interests in the mark or the disputed domain name using it.
The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent registered and is using the dispute domain name in bad faith.
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 to 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.
Given 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 will draw such inferences as the Panel 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 or Confusingly Similar:
Complainant uses the CAPITAL ONE mark in connection with its business as a financial institution that offers financial products and services to consumers, small businesses and commercial clients. Complainant registered CAPITAL ONE with the USPTO (e.g., Reg. No. 1,992,626, registered Aug 13, 1996), arguing such registrations demonstrate rights in the mark. See Compl., at Attached Ex. A. Registrations such as that with the USPTO are sufficient to demonstrate rights in a mark pursuant to Policy ¶ 4(a)(i). 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).”).
Complainant argues that Respondent’s <capitalonesupport.com> domain name is confusingly similar to the CAPITAL ONE mark. The domain appears to include the entire CAPITAL ONE mark and adds the generic term “support” as well as the gTLD “.com.” The presence of the gTLD “.com” and generic terms in a disputed domain name are irrelevant to an analysis of confusing similarity. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Therefore, this Panel finds that the disputed domain name is confusingly similar to the CAPITAL ONE mark under Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such 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 first contends that Respondent is not commonly known by the disputed domain name based on WHOIS information. WHOIS information associated with the domain name indicates that Respondent registered the domain using the name “Leonard Olsen,” which does not appear similar to the disputed domain. Compl., at Attached Ex. B. In addition, Complainant claims that Respondent is not a licensee of Complainant and has not been authorized to use the CAPITAL ONE mark in any way. Panels have held, and this Panel similarly holds, that a respondent is not commonly known by a disputed domain when WHOIS information and other evidence in the record fails to show common association but instead suggests the contrary. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant next asserts that Respondent’s use of the disputed domain, to provide click through links to Complainant’s business and Complainant’s competitors’ businesses, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent appears to use the domain to resolve to a website that displays a director of links with titles such as, “Capital One Credit Card,” “Credit Card Payment Processors,” “Visa Credit Card,” and “Small Business Credit Card.” Compl., at Attached Ex. C. When the “Capital One Credit Card” link is clicked the user is directed to a page with additional click through links, which redirect to Complainant’s website and others. See Compl., at Attached Ex. D. When the “Visa Credit Card” link is clicked various advertisements for VISA credit cards are displayed. See Id. Panels have held that using a confusingly similar domain to display click-through links of Complainant and Complainant’s competitors is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”). This Panel thus finds that Respondent’s use of the disputed domain does not fall within Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant argues that Respondent competes with and disrupts Complainant’s business through the disputed domain. Respondent’s domain resolves to a website that displays click-through links for Complainant’s products and services as well as those of Complainant’s competitors. See Compl., at Attached Ex. C & D. Panels have found bad faith where a respondent uses a confusingly similar domain to display links of a complainant’s competitor. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant further contends that Respondent’s use of the disputed domain indicates that Respondent attempts to confuse and attract Internet users for profit. Again, Respondent’s domain resolves to a site that displays commercial click-through links for which Respondent presumably profits. Prior panels have found bad faith in similar circumstances. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). This Panel finds that Respondent exploits the confusing similarity between the domain and the CAPITAL ONE mark to profit from Internet users who are diverted to Respondent’s site although seeking Complainant and its services.
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN 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 <capitalonesupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 12. 2016.
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