Capital One Financial Corp. v. Samir Beool / Forex Traders Union
Claim Number: FA1512001650471
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Samir Beool / Forex Traders Union (“Respondent”), Cyprus.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitaloneforex.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 2, 2015; the Forum received payment on December 2, 2015.
On December 2, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <capitaloneforex.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 December 7, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 28, 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@capitaloneforex.com. Also on December 7, 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 December 31, 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 is a major financial institution headquartered in McLean, Virginia. It was founded in 1988 and helped pioneer the mass marketing of credit cards in the early 1990s. Complainant offers a broad spectrum of financial products and services to consumers, small businesses and commercial clients. Complainant has consistently used the CAPITAL ONE mark to promote its goods and services since its inception. The mark is registered in many jurisdictions around the world. The mark was registered in the US in 1996.
According to Complainant, the disputed domain name is confusingly similar to the CAPITAL ONE mark as the domain name merely adds the generic top-level domain (“gTLD”) “.com” and the generic term “forex.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain based on WHOIS information and an absence of authorization from Complainant. Respondent’s use of the disputed domain, to operate a commercial foreign exchange website, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and is using the disputed domain in bad faith. Respondent uses the domain to resolve to a website that offers commercial financial and investing services. Respondent’s use disrupts Complainant’s business and attracts and confuses internet users for profit. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CAPITAL ONE and uses it to market a range of financial products and services. The mark and the products are well known.
Complainant’s registration of its mark dates back to 1996.
The disputed domain name was registered in 2012.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name points to a web site that that offers commercial financial and investing services that compete with those of Complainant.
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.”).
Complainant uses the CAPITAL ONE mark in connection with its business as a financial institution that offers financial products and services to consumers, small businesses and commercial clients. Complainant registered CAPITAL ONE in the US in 1996. The disputed domain name includes the entire CAPITAL ONE mark and adds the generic term “forex,” meaning “foreign exchange market,” as well as the gTLD “.com.” Panels have held that the presence of the gTLD “.com” and generic terms in a disputed domain name are irrelevant to an analysis of confusing similarity. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”).
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark under Policy ¶ 4(a)(i).
Respondent has not been commonly known by the disputed domain name based on WHOIS information. WHOIS information associated with the domain name indicates that Respondent registered the domain using the name “Samir Beool” of the organization “Forex Traders Union,” neither of which appear to completely resemble the disputed domain name. Panels have held that a respondent may be considered not commonly known by a disputed domain based on WHOIS information and a lack of other evidence in the record to the contrary. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
The disputed domain name resolves to a website operating as a foreign exchange market. Included on the resolving website is a prompt to sign up for different accounts including, “Micro Account, From $100,” “Gold Account, From $1,000,” and “Platinum Account, from $10,000.” Panels have held that a respondent using a confusingly similar domain to resolve to a website that offers commercial services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Capital One Financial Corp. v. Brian Gelinas / Omni Management Group, LLC, FA1612148 (Nat. Arb. Forum May 6, 2015) (concluding that “…Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use, in that each of the domain names redirects Internet users seeking Complainant’s website to Respondent’s website, which offers bankruptcy consulting services, presumably for Respondent’s financial gain.”).
Thus the Panel finds that Respondent’s use does not constitute a permissible use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
Furthermore, where a party has registered and used a domain name in bad faith (see the discussion below), that party cannot be found to have made a bona fide offering of goods and services, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan, D2002-0701 (WIPO Sept. 6, 2002); see also AltaVista Company v. Saeid Yomtobian, D2000 0937 (WIPO Oct. 13, 2000).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous 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.
As stated previously, Respondent’s domain resolves to a commercial website that operates a foreign currency exchange market. Thus Respondent competes with and disrupts Complainant’s business through the disputed domain. Panels have found a respondent to have acted in bad faith where the disputed domain was used in a manner that competes with a complainant’s business or services. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Further, Respondent’s use of the disputed domain indicates that Respondent attempts to confuse and attract internet users for profit. Indeed Prior panels have found bad faith where a respondent’s use is commercially profiting from exploiting the confusing similarity between a mark and a disputed domain name. See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). The Panel finds that Respondent exploits the confusing similarity between the domain and the CAPITAL ONE mark to profit from internet uses. Consequently the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitaloneforex.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 1, 2016
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