Capital Bank Corporation v. Joseph Momoh / Computips Technologies Enterprises
Claim Number: FA1711001760633
Complainant is Capital Bank Corporation (“Complainant”), represented by William S. Fultz of Parker, Poe, Adams & Bernstein LLP, North Carolina, USA. Respondent is Joseph Momoh / Computips Technologies Enterprises (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalbanklinks.com>, registered with NameCheap, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 30, 2017; the Forum received payment on November 30, 2017.
On November 30, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <capitalbanklinks.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@capitalbanklinks.com. Also on December 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 December 26, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant Capital Bank Corporation, is a commercial bank in the United States with approximately $10 billion in assets and 182 branches. Complainant uses its CAPITAL BANK to promote its products and services. Complainant established rights in the mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 3,898,782, registered Jan. 4, 2011, Amended Jun. 20, 2017).
2. Respondent’s <capitalbanklinks.com>[1] is confusingly similar to Complainant’s mark because it merely appends the generic term “links” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
3. Respondent does not have rights or legitimate interests in the domain name. Complainant has not licensed or authorized Respondent to use its mark in any fashion, and Respondent is not commonly known by the <capitalbanklinks.com> domain name, as the WHOIS information lists the registrant as “Joseph Momoh / Computips Technologies Enterprises.”
4. Further, Respondent is not using the domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the <capitalbanklinks.com> to divert Internet users to its website where users are deceived into believing that they reached Complainant’s site and are prompted to provide personal financial and other information.
5. Respondent registered and uses the <capitalbanklinks.com> domain name in bad faith. Respondent uses the domain name to create a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain. Respondent creates this confusion in to conduct a fraudulent phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CAPITAL BANK mark. Respondent’s domain name is confusingly similar to Complainant’s CAPITAL BANK mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <capitalbanklinks.com> domain name and that Respondent registered and uses the 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 registered its CAPITAL BANK mark with the USPTO (e.g., 2,898,782, registered Jan. 4, 2011). Registration of a mark with a trademark authority, such as the USPTO, confers rights in a mark for the purposes of Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). The Panel holds that Complainant has established rights in the CAPITAL BANK mark.
Next, Complainant contends that Respondent’s <capitalbanklinks.com> domain name is confusingly similar to Complainant’s mark because it merely appends the generic term “links” and the gTLD “.com” to the fully incorporated mark. The addition of a generic term and gTLD do not negate confusing similarity. See Oculus VR, LLC v. Ivan Smirnov, FA 1625898 (Forum July 27, 2015) (concluding that “Panels have consistently held that the addition of a gTLD does not distinguish a domain name from a mark, and that the removal of spaces between words of a mark is irrelevant.”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)). Therefore, the Panel concludes that Respondent’s <capitalbanklinks.com> is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <capitalbanklinks.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant alleges that Respondent does not have rights or legitimate interests in the <capitalbanklinks.com> domain name. Complainant has provided evidence claims it has not licensed or otherwise authorized Respondent to use its CAPITAL BANK mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the domain name, the respondent is presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record for the <capitalbanklinks.com> domain name lists “Joseph Momoh / Computips Technologies Enterprises” as the registrant. Therefore, the Panel concludes that Respondent is not commonly known by the <capitalbanklinks.com> domain name per Policy ¶ 4(c)(ii).
Further, Complainant contends that Respondent is not using the domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant has shown that Respondent uses the <capitalbanklinks.com> domain name to divert Internet users to Respondent’s website containing Complainant’s mark and website layout to carry out a phishing scheme. Use of a domain name to pass off as a complainant and phish for Internet users’ personal and financial information is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Screenshots of the <capitalbanklinks.com> domain name’s resolving website indicate that the site prominently features Complainant’s CAPITAL BANK mark and a “log in” page that prompts Internet users to provide personal financial and other information based on their apparent mistaken belief that the site is affiliated with Complainant’s business. Therefore, the Panel holds that Respondent attempts to pass off as Complainant to further a phishing scheme, thus failing to use the <capitalbanklinks.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant has shown that Respondent registered and uses the <capitalbanklinks.com> domain name in bad faith by creating a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain. Use of a domain name to create confusion as to the source, sponsorship, affiliation or endorsement of the content therein can evidence bad faith. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Screenshots of the <capitalbanklinks.com> domain name’s resolving website show that the site features Complainant’s CAPITAL BANK mark and purports to offer Complainant’s financial and banking services. Therefore, the Panel holds that Respondent uses the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by creating confusion for users seeking Complainant.
Further, Complainant argues that Respondent is using the domain name to conduct a phishing scheme. Use of a domain name to conduct a phishing scheme can demonstrate bad faith registration and use. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). As mentioned previously, screenshots of the <capitalbanklinks.com> domain name’s resolving website indicate that Internet users are prompted to supply personal and financial information under the belief that they are logging in to Complainant’s website. Therefore, the Panel concludes that Respondent attempts to phish for users’ information in bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(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 <capitalbanklinks.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 2, 2018
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