DECISION

 

Capital One Financial Corp. v. arun lahoti

Claim Number: FA1812001819365

 

PARTIES

Complainant is Capital One Financial Corp. ("Complainant"), represented by John Gary Maynard, Virginia, USA. Respondent is arun lahoti ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <capitaloneconsultants.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 4, 2018; the Forum received payment on December 4, 2018.

 

On December 5, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <capitaloneconsultants.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 December 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@capitaloneconsultants.com. Also on December 5, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 27, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a major financial institution headquartered in McLean, Virginia. Complainant was founded in 1988 and has used the CAPITAL ONE mark since its inception. Complainant and its wholly-owned subsidiaries own numerous trademark registrations and pending applications for CAPITAL ONE and related marks. Complainant's CAPITAL ONE mark is registered in more than fifteen countries.

 

Respondent is the registrant of the disputed domain name <capitaloneconsultants.com>, registered in June 2013. Complainant states that Respondent is not commonly known by the disputed domain name, that Complainant has never licensed or otherwise authorized Respondent to use its marks. The domain name is being used for a website entitled "CapitalOne Consultants" that appears to be a largely undeveloped blog site. In response to a September 2018 demand letter from Complainant, Respondent offered to transfer the domain name for US $15,000. In response to Complainant's request for an explanation, Respondent explained that $2,500 would cover Respondent's costs for domain name registration and renewal and the remainder would compensate for "time value of investment and the effort put into it."

 

Complainant contends on the above grounds that the disputed domain name <capitaloneconsultants.com> is confusingly similar to its CAPITAL ONE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

DISCUSSION

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 Management, 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 disputed domain name <capitaloneconsultants.com> incorporates Complainant's registered CAPITAL ONE trademark, omitting the space and adding the generic term "consultants" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Capital One Financial Corp. v. Berny Fellas, FA 1737109 (Forum July 21, 2017) (finding <capitalonegroups.com> confusingly similar to CAPITAL ONE); Capital One Financial Corp. v. Barbara Shurtleff, FA 1540669 (Forum Mar. 3, 2014) (finding <capitalone-investments.com> confusingly similar to CAPITAL ONE); Campus Management Corp. v. Sudha d/b/a Nichetechies Consultants, FA 1346206 (Forum Oct. 25, 2010) (finding <talismaconsultants.com> confusingly similar to TALISMA). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant's registered mark.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for what appears to be an inactive and largely undeveloped blog website. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent registered a domain name incorporating Complainant's well-known mark, combined with a generic term related to Complainant's business, and does not appear to have made any substantial active use of the domain name. In response to an inquiry from Complainant, Respondent offered to transfer the domain name in exchange for a sum far in excess of its out-of-pocket costs. Such conduct is indicative of bad faith registration and use under the provisions of the Policy cited above. See, e.g., Capital One Financial Corp. v. Larry Akwasi, FA 1699039 (Forum Nov. 21, 2016) (inferring bad faith from registration and failure to make active use of domain name incorporating CAPITAL ONE mark); Capital One Financial Corp. v. Ralph Ratchford, FA 1602630 (Forum Feb. 26, 2015) (inferring bad faith from registration of domain name incorporating CAPITAL ONE mark and use for a "coming soon" website). An offer to sell a domain name that is made only in response to a complainant's inquiry is normally insufficient to support an inference that the domain name was registered for the purpose of resale. See, e.g., Snap Inc. v. Mohammed Khaled, FA 1814138 (Forum Nov. 28, 2018). Here, however, the Panel considers such an inference appropriate in light of the disingenuousness of Respondent's offer, the fame of Complainant's mark, Respondent's failure to make active use of the domain name, and the lack of any apparent legitimate basis for Respondent's registration of the domain name. Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <capitaloneconsultants.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

David E. Sorkin, Panelist

Dated: December 28, 2018

 

 

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