Capital One Financial Corp. v. hello@thedomain.io / Jurgen Neeme
Claim Number: FA1903001832548
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is hello@thedomain.io / Jurgen Neeme (“Respondent”), Estonia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalone.cloud>, 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 March 5, 2019; the Forum received payment on March 5, 2019.
On March 5, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <capitalone.cloud> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. 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 March 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 2019 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@capitalone.cloud. Also on March 6, 2019, 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 March 27, 2019, 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 offers a broad spectrum of financial products and services to consumers, small businesses and commercial clients. Complainant has rights in the CAPITAL ONE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,065,992, registered May 27, 1997). Respondent’s <capitalone.cloud> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and merely appends the “.cloud” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <capitalone.cloud> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to resolve to a webpage displaying a search engine and “related links,” some of which compete with Complainant. Further, Respondent attempts to sell the domain name.
Respondent registered and uses the <capitalone.cloud> domain name in bad faith. Respondent attempts to sell the domain name for an amount in excess of out-of-pocket expenses. Further, Respondent is using the disputed domain name to divert Internet customers seeking Complainant’s website to directory websites and a commercial search engine that displays third-party links to Complainant’s competitors. Additionally, Respondent registered the domain name using a 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 <capitalone.cloud> domain name.
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 claims rights in the CAPITAL ONE mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,065,992, registered May 27, 1997). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has established rights in the CAPITAL ONE mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <capitalone.cloud> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and merely appends the “.cloud” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”). The Panel finds that the <capitalone.cloud> domain name is identical and/or confusingly similar to the CAPITAL ONE mark under 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 name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <capitalone.cloud> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Jurgen Neeme / hello@thedomain.io” as the registrant, and nothing in the record indicates that Complainant authorized Respondent to use the mark for any purpose. The Panel finds that Respondent is not commonly known by the <capitalone.cloud> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent attempts to sell the domain name. Offering a confusingly similar domain name for sale can evince a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name). Complainant provides a screenshot of the website “Uniregistry Market” which states “capitalone.cloud is listed for sale!” and solicits the domain name for $4,988 USD. The Panel finds that Respondent offers the disputed domain name for sale, evidence that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent uses the domain name to resolve to a webpage displaying a search engine and “related links,” some of which compete with Complainant. Using a domain name to display hyperlinks to services relating to a complainant generally does not amount to any bona fide offering of goods or services or a legitimate noncommercial or fair use. See Barclays PLC v. Antwan Barnes, FA 1806411 (Forum Oct. 20, 2018) (“Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides a screenshot of the resolving webpage, which displays links such as “Bank Savings Rates” and “Checking Accounts.” The Panel finds that Respondent’s has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant claims that Respondent attempts to sell the domain name for an amount in excess of out-of-pocket expenses. Offering to sell a confusingly similar domain name can evince bad faith under Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”). Once again, Complainant provides a screenshot of the website “Uniregistry Market” which states “capitalone.cloud is listed for sale!” and lists the domain name for sale at $4,988 USD. The Panel finds that Respondent’s general offer to sell the domain name is evidence of bad faith per Policy ¶ 4(b)(i).
Complainant claims that Respondent is using the <capitalone.cloud> domain name to divert Internet customers seeking Complainant’s website to directory websites and a commercial search engine that displays third-party links to Complainant’s competitors. Using a confusingly similar domain name to offer links to a complainant’s competitors can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Complainant provided a screenshot of the resolving webpage, which displays links such as “Bank Savings Rates” and “Checking Accounts.” The Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark and registered and uses the domain name in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Complainant has proved this element.
DECISION
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 <capitalone.cloud> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: April 2, 2019
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