Capital One Financial Corp. v. Hildegard Gruener
Claim Number: FA1707001738829
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Hildegard Gruener (“Respondent”), Austria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonenearme.com>, registered with GoDaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 7, 2017; the Forum received payment on July 7, 2017.
On July 7, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <capitalonenearme.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 10, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 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@capitalonenearme.com. Also on July 10, 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 August 2, 2017, 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, Capital One Financial Corp., uses the CAPITAL ONE mark to provide banking and financial services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,442,400, registered June 3, 2008). Respondent’s <capitalonenearme.com> is confusingly similar as it contains Complainant’s mark in its entirety, merely adding the descriptive phrase “near me” and the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <capitalonenearme.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission to use the CAPITAL ONE mark. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent attempts to pass off the disputed domain name as an official website affiliated with Complainant. Respondent is attempting to impersonate Complainant.
Respondent has registered and used the <capitalonenearme.com> domain name in bad faith. Respondent is attempting to pass itself off as a website connected with Complainant. Respondent attempts to attract Internet users for commercial gain by creating confusion as to the source sponsorship, affiliation, or endorsement of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Capital One Financial Corp., uses the CAPITAL ONE mark to provide banking and financial services. Complainant has rights in the mark based upon registration with the USPTO (e.g., Reg. No. 3,442,400, registered June 3, 2008). Respondent’s <capitalonenearme.com> is confusingly similar to the CAPITAL ONE mark.
Respondent, Hildegard Gruener, created the<capitalonenearme.com> domain name on June 25, 2015.
Respondent does not have rights or legitimate interests in the <capitalonenearme.com> domain name. Respondent attempts to pass off the disputed domain name as an official Capital One website. Respondent displays the CAPITAL ONE trademark in numerous locations on the webpage. In addition, Respondent states “browse the diversified banking services we offer!”
Respondent’s web site provides unverified information about Capital One and some of its services. Respondent’s website provides links to many of Complainant’s websites whereby, presumably, Respondent receives some form of monetary gain through the links found on the web page.
Respondent has registered and used the <capitalonenearme.com> 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 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 has rights in the CAPITAL ONE mark based upon registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <capitalonenearme.com> domain name is confusingly similar to the CAPITAL ONE mark as it contains the mark in its entirety and adds the descriptive phrase “near me” along with the gTLD “.com.”
Respondent has no rights or legitimate interests in <capitalonenearme.com>. Complainant has not authorized Respondent to use the CAPITAL ONE mark. Respondent is not commonly known by the disputed domain name. The WHOIS information of record identifies the registrant of the domain name as “Hildegard Gruener.” See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (concluding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark); see also Navistar International Corporation v. N Rahmany, FA 1620789 (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).
Respondent has failed to use the <capitalonenearme.com> domain name for a bona fide offering of goods or services or for legitimate noncommercial or fair use. Respondent uses the domain name to create confusion with Complainant’s mark in an attempt to pass off as Complainant. See Wikimedia Foundation v. Host Master, Above.com Domain Privacy, D2015-0132 (WIPO Mar. 26, 2015) (use of another's trademark without authority in order to attract visitors for the collection of personal data must clearly negate the legitimacy of the operation); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Respondent registered and use the <capitalonenearme.com> domain name in bad faith. Specifically, Complainant asserts Respondent is disrupting Complainant’s business by using Complainant’s marks on the resolving website in an attempt to pass off as Complainant. Passing off behavior is bad faith under both Policy ¶¶ 4(b)(iii) and (iv). See Capital One Financial Corp. v. Huang Li Technology Corp c/o Dynadot, FA 1620197 (Forum June 16, 2015) (“Respondent’s attempts to pass itself off as Complainant to disrupt Complainant’s business…constitutes bad faith registration and use under Policy ¶4(b)(iii).”); see also H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness).
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 <capitalonenearme.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 11, 2017
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