Capital One Financial Corp. v. Eric Wood
Claim Number: FA1504001615032
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Eric Wood (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <textmycapitalone.com>, registered with GoDaddy.com, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2015; the Forum received payment on April 17, 2015.
On April 17, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <textmycapitalone.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 April 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 2015 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@textmycapitalone.com. Also on April 21, 2015, 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 May 18, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 alleges that it is the owner of record of the famous Capital One trademark in multiple jurisdictions for multiple incantations of that trademark as evidenced in the detailed Exhibit A: Attachment 1.
The Complainant further alleges that Respondent’s disputed domain name <textmycapitalone.com> is confusingly similar to Complainant’s CAPITAL ONE trademark because Respondent’s domain name contains Complainant’s mark in its entirety and simply adds the generic words “text” and “my.” Moreover, the additions of the generic terms “text” and “my,” which directly relates to Complainant’s business, as well as the generic top-level domain “.com” to a domain name are insufficient to distinguish a disputed domain name and a mark.
Further, Complainant alleges that the Respondent should be considered as having no rights or legitimate interests in respect of the domain name that is the subject to this Complaint. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶ 4(a)(ii).
Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name. See Exhibit B. Complainant has never authorized Respondent to use its CAPITAL ONE trademark, much less use the mark as a domain name, and Respondent is not a licensee of Complainant. See Exhibit A. Such evidence is sufficient to establish a respondent’s lack of rights to the disputed domain name.
Finally, Complainant argues that the disputed domain name should be considered as having been registered and being used in bad faith. UDRP Rule 3(b)(ix)(3); UDRP Policy ¶ 4(a)(iii). Respondent is using the disputed domain name <textmycapitalone.com> to resolve to a blank or inactive page. Failure to actively use a domain name constitutes bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on November 27, 2013.
As the Respondent has failed to file a Response in this matter, the Panel shall make its determination based on the reasonable allegations of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s famous and subsisting trademark registrations, that the Respondent has no rights or legitimate interests in or to the disputed domain name and that the Respondent has engaged in bad faith use and registration of the disputed 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(e), 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 (Nat. Arb. 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 the disputed domain name is confusingly similar to Complainant’s famous trademark. The disputed domain name consists of the Complainant’s famous trademark plus two generic words. The Panel agrees with Complainant that the mere addition of “text” and “my” with no space prior to the famous trademark is insufficient to distinguish the disputed domain name from the famous trademark.
Further, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. The WHOIS information provided by Complainant (Exhibit B) does not indicate the Respondent has a name or business identity that is in anyway connect to or representative of the disputed domain name. The Complainant has never licensed or otherwise authorized the registration of the disputed domain name.
Respondent’s lack of rights or legitimate interests in the disputed domain name is further evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name <textmycapitalone.com> contains no content; only a statement noting “Website Coming Soon.”
As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
Respondent is using the disputed domain name to resolve to a blank or inactive page. Complainant is correct in claiming that such nonuse of a registered domain name raises the presumption of bad faith use and registration.
As the Respondent has not rebutted any of these claims, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <textmycapitalone.com> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 20, 2015
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