Capital One Financial Corp. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1504001615035
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonenohassel.com>, registered with Internet.bs Corp..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2015; the Forum received payment on April 17, 2015.
On April 23, 2015, Internet.bs Corp. confirmed by e-mail to the Forum that the <capitalonenohassel.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 24, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 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@capitalonenohassel.com. Also on April 24, 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 21, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it owns numerous registered trademarks, dating back to 1995, for the mark CAPITAL ONE. The mark is well known and it is used by Complainant to market a range of banking and financial services around the world.
According to Complainant, the disputed domain name is confusingly similar to its mark because Respondent’s domain name contains Complainant’s mark in its entirety and simply adds the generic term “no hassle.” That term is used in Complainant’s marketing efforts, including in television advertisements. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the disputed domain name. Complainant has never authorized Respondent to use its mark and Respondent is not a licensee of Complainant. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial of fair use. On the contrary, the disputed domain name resolves to a web page that contains a fillable form that can be used to “make an offer” to purchase the disputed domain name. This cannot be considered to be a legitimate use of the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith because the web site at the disputed domain name does not display any content other than the web form cited above. Complainant cites UDRP precedents to support its position.
In addition, adds Complainant, Respondent registered the domain name with a privacy service, further evidence that the domain was registered in bad faith. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for numerous marks around the world that include the name CAPITAL ONE, dating back to 1995. Its marks are well-known in the financial industry.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2005.
The products and services offered by Complainant are widely used and well known.
Respondent is using the disputed domain names to resolve to a web site that contains no content other than a form that can be used to make an offer to buy 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, in the sense of the Policy, to Complainant’s mark because it consists of the mark and the common term “no hassle” which is used by Complainant in its advertisements. See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Wells Fargo & Company v. Pinnacle Management Group, Inc., FA1272346 (Nat. Arb. Forum August 18, 2009) (The addition of the terms “merchant services” which relate to Complainant’s business, does not distinguish the disputed domain name from Complainant’s mark. Moreover, the addition of the generic top-level domain (gTLD”) “.com” also does not sufficiently distinguish the disputed domain name from Complainant’s mark as a top-level domain is a required element of all Internet domain names.).
Respondent is using the disputed domain name to point to a website that has no content other than an invitation to bid to buy the disputed domain name.
The Panel finds that Respondent is disrupting Complainant’s business and so its use of the disputed domain name does not fall within the parameters of a bona fide offering of goods or services pursuant to ¶ 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to ¶ 4(c)(iii) of the Policy. Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“the panel there finding that: ‘Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).’”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
It is clear to the Panel that Respondent was aware of Complainant’s mark when it registered and started using the disputed domain name, because the disputed domain name incorporates Complainant’s well-known mark.
Respondent (who did not reply to the Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, in the Panel’s view, Respondent’s actual use of the disputed domain name (as noted above) is clearly not bona fide, because Respondent uses the disputed domain name only to solicit bids for the said domain name. Such actual use constitutes evidence of bad faith pursuant to Policy ¶ 4(b)(i). See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding that the attempted sale of a domain name is evidence of bad faith); see also Riverbed Technology, Inc. v. Nicholas Bonner, FA 1608365 (Nat. Arb. Forum April 17, 2015); Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonenohassel.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 22, 2015
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