Capital One Financial Corp. v. Emmanuel All-well Chikwado Iwu
Claim Number: FA1611001702470
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Emmanuel All-well Chikwado Iwu (“Respondent”), Ghana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitallsone.com>, (‘the Domain Name’) registered with EvoPlus Ltd.
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 IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 11, 2016; the Forum received payment on November 11, 2016.
On November 16, 2016, EvoPlus Ltd. confirmed by e-mail to the Forum that the <capitallsone.com> domain name is registered with EvoPlus Ltd. and that Respondent is the current registrant of the name. EvoPlus Ltd. has verified that Respondent is bound by the EvoPlus Ltd. 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 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 2016 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@capitallsone.com. Also on November 16, 2016, 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 7, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s submissions can be summarised as follows:
Complainant owns, inter alia, a trade mark registration for CAPITAL ONE in the USA for financial services. It has used its mark continuously since 1988.
The Domain Name is confusingly similar to Complainant’s CAPITAL ONE trade mark containing a simple misspelling or typographical error that an Internet user might make when typing in the Complainant’s mark and the gTLD .com. This does not sufficiently distinguish the Domain Name from Complainant’s mark.
Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not commonly known by the Domain Name. Complainant has never authorised Respondent to use its mark. Respondent has not used the Domain Name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. The Domain Name resolves to a parked web page containing a search engine and directory. It contains links to Complainant’s competitors.
The Domain Name has been registered and is being used in bad faith. Respondent is using it to divert Internet customers seeking Complainant’s web sites to directory websites and third party links to Complainant’s competitors.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns, inter alia, a trade mark registration for CAPITAL ONE in the USA for financial services with first use in commerce recorded as 2005.
The Domain Name was registered in 2016 and is not being used.
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(f), 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 (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
The Domain Name consist of signs highly similar to Complainant's mark CAPITAL ONE and the gTLD .com save that the extra letters ‘ls’ have been added. Accordingly the Domain Name appears to be a typosquatted versions of Complainant’s registered mark CAPITAL ONE.
Panels have commonly held that the addition of letters to a mark does not distinguish a domain name from a Complainant’s mark. See Am. Online v Amigos On Line RJ, FA 115041 (Forum, Aug. 28, 2002)(finding that aolrj.com domain name was confusingly similar to the complainant’s AOL mark because the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark).
The gTLD .com does not serve to distinguish the Domain Name from the CAPITAL ONE mark, which is the distinctive component of the Domain Name. 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 Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not given Respondent permission to use the Domain Name. Respondent does not appear to be commonly known by the Domain Name, is not using it to offer bona fide goods and services and is not making a legitimate noncommercial or fair use of the name. The Domain Name has not been used. If the Domain Name is typed in browsers attempt to link the user to Complainant and searches related to Complainant, but only because the Domain Name is a misspelled version of Complainant’s name.
The Domain Name appears to be a typosquatted version of Complainant's domain name chosen in the hope that a customer might mistakenly reach Respondent's web site by mistakenly typing additional letters when intending to access Complainant’s site. See Amazon.com, Inc. v JJ Domains, FA 514939 (Nat Arb. Forum Sept 2, 2005) (respondent lacks rights and legitimate interests in the www-amazon.com domain name because the addition of 'www-' constitutes typosquatting).
As such the Panel find that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As found above, the Domain Name appears to be a typosquatted version of Complainant's domain name. Typosquatting itself is evidence of relevant bad faith registration and use. See Vanguard Group Inc. v IQ Mgmt. Corp FA 328127 (Nat Arb Forum Oct 28, 2004) (By engaging in typosquatting respondent has registered and used the vangard.com domain name in bad faith pursuant to Policy 4(a) (iii).
As such, the Panel holds that 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 <capitallsone.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 8, 2016
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