Capital One Financial Corp. v. \u0410\u043d\u0430\u0442\u043e\u043b\u0456\u0439 \u0428\u0435\u0432\u0447\u0435\u043d\u043a\u043e
Claim Number: FA1903001834859
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is \u0410\u043d\u0430\u0442\u043e\u043b\u0456\u0439 \u0428\u0435\u0432\u0447\u0435\u043d\u043a\u043e (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ukrcapitalone.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of 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 March 20, 2019; the Forum received payment on March 20, 2019.
On March 20, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ukrcapitalone.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 March 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 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@ukrcapitalone.com. Also on March 20, 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 April 10, 2019, 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 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. Respondent’s <ukrcapitalone.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark.
2. Respondent does not have any rights or legitimate interests in the <ukrcapitalone.com> domain name.
3. Respondent registered and uses the <ukrcapitalone.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a major financial institution that offers financial products and services to consumers in many different countries. Complainant holds a registration for the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,992,626, registered Aug. 13, 1996).
Respondent registered the <ukrcapitalone.com> domain name on September 11, 2018, and uses it to resolve to a webpage displaying an error message.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has established rights in the CAPITAL ONE mark for the purposes of Policy ¶ 4(a)(i) based on its registration of the mark with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <ukrcapitalone.com> domain name incorporates Complainant’s mark and merely adds the generic letters “ukr” along with the “.com” gTLD. Similar changes to a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). The Panel therefore finds that Respondent’s <ukrcapitalone.com> domain name is confusingly similar to Complainant’s CAPITAL ONE 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 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 infringing domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not authorized, licensed, or otherwise permitted Respondent to use the CAPITAL ONE mark. The WHOIS information identifies “\u0410\u043d\u0430\u0442\u043e\u043b\u0456\u0439\u0428\u0435\u0432\u0447\u0435\u043d\u043a\u043e” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <ukrcapitalone.com> domain name under Policy ¶ 4(c)(ii). 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.”).
Complainant argues that the <ukrcapitalone.com> domain name resolves to a webpage displaying an error message. Failure to make an active use of a confusingly similar domain name can evince a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides a screenshot of the resolving webpage associated with the domain name, which displays the error message “This site can’t be reached.” Accordingly, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent is using the <ukrcapitalone.com> domain name to resolve to an inactive webpage. Inactively holding a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Accordingly, the Panel finds that Respondent’s failure to use the domain name demonstrates Respondent’s bad faith under the Policy.
The Panel finds that 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 <ukrcapitalone.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 11, 2019
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