Capital One Financial Corp. v. Zhichao Yang
Claim Number: FA1705001733617
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, U.S.A. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <applicationscapitalone.com> and <capitaloneservicing.com>, registered with NameSilo, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2017; the Forum received payment on May 30, 2017.
On May 30, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <applicationscapitalone.com> and <capitaloneservicing.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 2017 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@applicationscapitalone.com, postmaster@capitaloneservicing.com. Also on June 1, 2017, 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 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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, Capital One Financial Corp., is a financial services provider based in Richmond, Virginia, USA. Complainant registered the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”) to promote its goods and services. Respondent’s domain names, <applicationscapitalone.com> and <capitaloneservicing.com>, are confusingly similar to Complainant’s CAPITAL ONE mark because the domain names incorporate the mark in its entirety and add the generic terms “applications” and “servicing”, plus the generic
top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain names.
Respondent is neither commonly known by the disputed domain names nor has
Complainant authorized Respondent to use its CAPITAL ONE mark. Respondent is
not using the disputed domain names in connection with a bona fide offering
of goods or services or legitimate noncommercial or fair use. Instead,
Respondent uses <applicationscapitalone.com> and <capitaloneservicing.com>
to divert Internet users to directory websites and a commercial search engine
that displays pay-per-click advertising for Respondent’s commercial gain. The
sponsored links connect to Complainant’s business as well as other financial
institutions, including Complainant’s competitors.
Respondent’s use of the disputed domain name to divert Internet users to a website displaying links to third-party competitors supports a finding of bad faith. Furthermore, Respondent’s use of the disputed domain names disrupts Complainant’s business. Finally, Respondent registered the disputed domain names with a WHOIS privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <applicationscapitalone.com> and <capitaloneservicing.com> domain names.
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.”).
Complainant asserts that it has established rights in the CAPITAL ONE mark via its registration of that mark with the USPTO. Registration of a mark with the USPTO sufficiently establishes rights in that mark. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Complainant has established rights in the CAPITAL ONE mark.
Complainant argues that <applicationscapitalone.com> and <capitaloneservicing.com> are confusingly similar to Complainant’s CAPITAL ONE mark because the domain names incorporate the mark in its entirety and merely add the generic terms “applications” and “servicing”, plus the gTLD “.com.” The addition of generic terms and a gTLD is not sufficient to eliminate confusing similarity. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or deescriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). Therefore, the Panel finds that <applicationscapitalone.com> and <capitaloneservicing.com> are confusingly similar to Complainant’s CAPITAL ONE mark per Policy ¶ 4(a)(i).
Complainant
has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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 (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 asserts that Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use its CAPITAL ONE mark. Where a respondent fails to submit a response, the Panel may look to the WHOIS information to determine whether Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information on record lists “Zhichao Yang” as the registrant of both domain names. Furthermore, lack of evidence in the record showing that Complainant authorized Respondent to use the CAPITAL ONE mark can further support a finding that Respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Therefore, the Panel concludes that Respondent is not commonly known by the <applicationscapitalone.com> and <capitaloneservicing.com> domain names.
Complainant contends that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant asserts Respondent’s disputed domain names resolve to website hosting pay-per-click advertising for Respondent’s gain. Use of a disputed domain name to host pay-per-click advertising in competition with a complainant’s business is not a bona fide offering of goods or services or a legitimate noncommercial fair use per Policy ¶¶ 4(c)(i) & (iii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Respondent uses <applicationscapitalone.com> and <capitaloneservicing.com> to divert Internet users to directory websites and a commercial search engine that displays pay-per-click advertising for Respondent’s commercial gain. Therefore, the Panel finds Respondent failed to use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial fair use.
Complainant has proved this element.
Complainant argues that Respondent’s use is disruptive of its business because Respondent is using the disputed domain names to divert Internet users to a website hosting pay-per-click links to competing services. Using disputed domain names to resolve to websites hosting pay-per-click advertising in competition with a complainant is disruptive and supports a finding of bad faith per Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). The disputed domain names resolve to websites hosting pay-per-click advertising in competition with Complainant’s business. Therefore, the Panel finds Respondent has registered and is using the disputed domain names in bad faith.
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <applicationscapitalone.com> and <capitaloneservicing.com> domain names be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: July 5, 2017
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