Capital One Financial Corp. v. Ajay Kishin
Claim Number: FA1708001742880
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Ajay Kishin (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitaloneautofinancing.us>, registered with NameCheap, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 3, 2017; the Forum received payment on August 3, 2017.
On August 3, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <capitaloneautofinancing.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 28, 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@capitaloneautofinancing.us. Also on August 7, 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 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 usTLD 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 usTLD Policy, usTLD 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
1. Respondent’s <capitaloneautofinancing.us> domain name is confusingly similar to Complainant’s CAPITAL ONE mark.
2. Respondent does not have any rights or legitimate interests in the <capitaloneautofinancing.us> domain name.
3. Respondent registered and uses the <capitaloneautofinancing.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the CAPITAL ONE mark to identify its financial services and has registered the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,989,909, registered July 5, 2011). Complainant has also registered CAPITAL ONE AUTO FINANCE with the USPTO (Reg. No. 2,586,340, registered June 25, 2002).
Respondent registered the <capitaloneautofinancing.us> domain name on November 14, 2016, and uses it to resolve to its webpage, which is unrelated to Complainant.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
The Panel finds that Complainant has established rights in both the CAPITAL ONE mark and the CAPITAL ONE AUTO FINANCE mark through registration with the USPTO. See Intel Corp. v. Macare, FA 660685 (Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Respondent’s <capitaloneautofinancing.us> domain name incorporates Complainant’s CAPITAL ONE AUTO FINANCE mark, adds the “.us” ccTLD, and changes the word “FINANCE” to “FINANCING.” Spacing and ccTLDs are irrelevant under the Policy. See Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity); see also Gianvito Rossi SRL Unipersonale v. david backhumn, FA 1628059 (Forum Aug. 12, 2015) (declaring, “Domain name syntax prohibits spaces in a domain name, so their absence must be disregarded when comparing a mark with a disputed domain name under Policy ¶4(a)(i).”). Generic or descriptive terms and changes in the spelling of a mark may also be inconsequential alterations to a mark. See Gen. Elec. Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000) (finding that adding the generic term “direct” on to the complainant’s marks (GE CAPTIAL and GECAL) does not alter the underlying mark held by the complainant, and thus the respondent’s domain names are confusingly similar); see also Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”). The Panel also notes precedent where a respondent changed a word in a mark to a present participle, creating confusing similarity. See IMT Services Corporation v. Joel McLaughlin, FA 1283676 (Forum Oct. 28, 2009) (finding confusing similarity where, “The <insuringmytrip.com> domain name differs from Complainant’s INSURE MY TRIP mark by changing the tense of the first word to a present participle, omitting the spaces between the words, and adding the generic top-level domain (“gTLD”) “.com.”). The Panel finds that Respondent’s <capitaloneautofinancing.us> domain name is confusingly similar to Complainant’s CAPITAL ONE AUTO FINANCE mark.
The Panel finds that complainant has satisfied Policy ¶4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 has no rights or legitimate interests in or to <capitaloneautofinancing.us> and is not commonly known by the disputed domain name. Respondent has not been authorized by Complainant to register any variant of CAPITAL ONE in a domain name per Policy ¶ 4(c)(iii). The WHOIS information for the disputed domain name lists “Ajay Kishin” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant argues that Respondent is not using the disputed domain name for a bona fide offering of goods or services via the disputed domain name, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv). The disputed domain name resolves to a webpage that is unrelated to Complainant, presumably for Respondent’s pecuniary gain. The Panel finds that this use is not legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv), and indicates a lack of rights and legitimate interests. See Haru Holding Corporation v. AI Matusita, FA 1679867 (Forum Aug. 11, 2016) (holding that “unrelated use [of a disputed domain name] by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use”).
The Panel finds that complainant has satisfied Policy ¶4(a)(ii).
Respondent is using the disputed domain name to divert Internet users to its own website, presumably for commercial gain, which disrupts Complainant’s business. The Panel finds that this is bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Complainant contends that, in light of the fame and notoriety of Complainant's CAPITAL ONE mark, it is inconceivable that Respondent could have registered the <capitaloneautofinancing.us> domain name without actual and/or constructive knowledge of Complainant's rights in the CAPITAL ONE and CAPITAL ONE AUTO FINANCE marks. The Panel agrees and finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
The Panel finds that complainant has satisfied Policy ¶4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitaloneautofinancing.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 30, 2017
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