Capital One Financial Corp. v. [Redacted]
Claim Number: FA1504001615036
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is [Redacted] (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonemolawsuit.info>, registered with 1&1 Internet AG (R113-LRMS).
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 20, 2015, 1&1 Internet AG (R113-LRMS) confirmed by e-mail to the Forum that the <capitalonemolawsuit.info> domain name is registered with 1&1 Internet AG (R113-LRMS) and that Respondent is the current registrant of the name. 1&1 Internet AG (R113-LRMS) has verified that Respondent is bound by the 1&1 Internet AG (R113-LRMS) 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 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 12, 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@capitalonemolawsuit.info. Also on April 22, 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 has legitimate rights to the CAPITAL ONE mark, and the disputed domain name <capitalonemolawsuit.info> is identical or confusingly similar to Complainant’s trademarks. The Complainant has registered and maintained the CAPITAL ONE trademark in multiple jurisdictions around the world ant the trademark is now famous.
Complainant also claims that Respondent’s disputed domain name <capitalonemolawsuit.info> 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 words “mo” and “lawsuit.” Moreover, the additions of the generic terms “mo” and “lawsuit,” which directly relates to Complainant’s business in this context, 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 argues 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. 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.
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 <capitalonemolawsuit.com> contains no content. See Exhibit C. This failure to use the domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i).
Finally, Complainant alleges that the disputed domain name should be considered as having been registered and being used in bad faith pursuant to UDRP Rule 3(b)(ix)(3); UDRP Policy ¶ 4(a)(iii). Respondent is using the disputed domain name <capitalonemolawsuit.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. The Respondent registered the disputed domain name on December 15, 2015.
C. Additional Submissions
After the deadline for filing passed in this matter, a person by the name of [Redacted] wrote to the Forum stating that “I believe you have the wrong [Redacted] as I am not involved in this case.” This e-mail correspondence came from [redacted]@gmail.com, the same e-mail address under which the WHOIS information states is the registrant of the disputed domain name in this matter.
As the Respondent failed to file an acceptable Response in a timely manner in this case, the Panel shall make its determination based on the reasonable assertions of the Complainant. The only real issue here is whether the Complainant has identified the appropriate party as the Respondent. The e-mail communication stating the owner of the email address was not related to this case emanated from the precise e-mail address on file with WHOIS. The Panel makes its findings as to the true Registrant of the disputed domain name, not as to the person whose email address was stolen. The Panel finds the “respondent’s” name and email address were used without his knowledge to register the disputed domain name and the Panel orders the Forum to redact this information from the decision. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s famous trademark, that the Respondent has no demonstrated rights or legitimate interests in or to the disputed domain name, and that the Respondent registered and used the disputed domain name in bad faith.
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 Complainant alleges that the disputed domain name is confusingly similar to its famous trademark. It claims that that “mo” and “lawsuit” added to its famous trademark does not distinguish the disputed domain name from its trademark. Complainant alleges that such use of the disputed domain name “relates to Complainant’s business in this context.” Complaint at 7. The Complainant makes no further explication of how, precisely, this relates to its business.
Nevertheless, as there is no evidence in the record to the contrary, the Panel finds that the disputed domain name is confusingly similar to Complainant’s famous trademark. The disputed domain name contains the Complainant’s famous trademark in its entirety. Simply adding the terms “mo” and “lawsuit” to the famous mark is insufficient to distinguish the disputed domain name from the famous trademark.
Rights or Legitimate Interests
Respondent
has no rights or legitimate interests in or to the disputed domain name. The
WHOIS information seems to accurately portray the Respondent as the Registrant
of the disputed domain name. The WHOIS information also shows that Respondent
is not commonly known by the disputed domain name.
Complainant has not licensed or otherwise authorized the use the disputed
domain name. Respondent has made no use of the disputed domain name, further
evidencing its lack of rights or legitimate interests.
Finally, the Panel concludes that the Respondent has registered and used the disputed domain name in bad faith. Respondent is using the disputed domain name <capitalonemolawsuit.info> to resolve to a blank or inactive page. Failure to actively use a domain name constitutes bad faith registration and use.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is ordered that the <capitalonemolawsuit.info> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 21, 2015
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