Capital One Financial Corp. v. huaijin hu
Claim Number: FA1705001733616
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, U.S.A. Respondent is huaijin hu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <captalone.pw>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2017; the Forum received payment on May 30, 2017.
On May 31, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <captalone.pw> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 May 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 2017 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@captalone.pw. Also on May 31, 2017, 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 June 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Capital One Financial Corp., offers banking services and has registered the CAPITAL ONE mark with the United States Patent and Trademark Office (“USPTO”), as well as other registrars worldwide, in furtherance of its business.
Respondent’s <captalone.pw> is confusingly similar to Complainant’s CAPITAL ONE mark because the domain name is a simple misspelling of the mark with the addition of the country-code top-level domain name (“ccTLD”) “.pw”.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither commonly known by the disputed domain name nor has Complainant authorized Respondent to use its CAPTIAL ONE mark. Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. Instead, eight months after the registration of the domain, the domain name continues to address a webpage devoid of content and displaying an error message.
Respondent registered and uses the disputed domain name in bad faith. Respondent failed to make an active use of the disputed domain name and the domain name has remained inactive for eight months. Respondent utilized a WHOIS privacy service to register the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CAPITAL ONE mark through its registration of such mark with the USPTO as well as through additional registrations worldwide.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its CAPITAL ONE trademark.
Respondent’s <captalone.pw> domain name is inactive.
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 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 (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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of its CAPITAL ONE mark with the USPTO is sufficient to allow the Panel to find that Complainant has rights in a mark under the Policy. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.); see also, Capital One Financial Corp. v. Ryan G Foo / PPA Media Services, FA 1544064 (Forum March 25, 2014) (finding that Complainant’s USPTO registration for the CAPITAL ONE mark satisfies the Policy ¶4(a)(i) rights requirement, regardless of where Respondent resides.”);
The at-issue domain name consists of Complainant’s entire CAPITAL ONE trademark less its space and “i” followed by the country code top-level domain name “.pw”. The slight differences between the domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel finds that the at-issue <captalone.pw> domain name is confusingly similar to Complainant’s CAPITAL ONE mark. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also, Crocs, Inc. v. [Registrant], FA 1043196 (Forum Sept. 2, 2007) (determining that “the addition of a ccTLD is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Absent contrary evidence of Policy ¶4(c) circumstances, or other evidence supporting a finding of Respondent’s having rights or legitimate interests in the domain name, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “huaijin hu.” Further, there is no evidence in the record which otherwise suggests that Respondent is known by the at-issue domain name. Therefore, the Panel concludes for the purposes of Policy ¶ 4(c)(ii)that Respondent is not commonly known by the at-issue domain name. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s <captalone.pw> domain name is inactive and has been for 8 months. The domain name returns an error message when entered into a browser. Respondent’s inactive use of the at-issue domain name shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Forum Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint).
Given the foregoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s domain name was registered and used in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), these provisions are merely illustrative of bad faith. Respondent’s bad faith may thus be demonstrated in light of other circumstances not comprehended within the four corners of Policy ¶ 4(b) but nevertheless indicative of Respondent’s bad faith. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
As mentioned above regarding rights and interests, Respondent makes no active use of the <captalone.pw> domain name and typing the domain name into a browser returns an error message. Respondent’s failure to make any active use of its confusingly similar domain name indicates Respondent’s bad faith per Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)).
Additionally, Respondent engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name wishing and hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse a malformed trademark laden domain name with its target trademark. Here, Respondent misspells Complainant’s trademark by eliminating the trademark’s “I” after dropping its syntactically impermissible space. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent registered the <captalone.pw> domain name knowing that Complainant had trademark rights in the CAPITAL ONE trademark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s overt misspelling of the trademark in the domain name. It is thus clear that Respondent intentionally registered the at-issue domain names to improperly exploit their trademark value, rather than for some inoffensive reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <captalone.pw> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <captalone.pw> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 22, 2017
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