DECISION

 

Capital One Financial Corp. v. Capital Group

Claim Number: FA1709001751131

PARTIES

Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA.  Respondent is Capital Group (“Respondent”), United Arab Emirates.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <capitalone.asia> (‘the Domain Name’), registered with NameCheap, Inc..

 

PANEL

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.

 

Dawn Osborne of Palmer Biggs IP as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 28, 2017; the Forum received payment on September 28, 2017.

 

On September 28, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the<capitalone.asia> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name.  NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 September 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 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@capitalone.asia.  Also on September 28, 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 October 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant’s contentions can be summarised as follows:

 

Complainant’s owns the registered trade mark CAPITAL ONE in, inter alia, the USA for banking and financial services with first use recorded as 1988.

 

The Domain Name registered in 2017 is confusingly similar to Complainant’s trade mark consisting of Complainant’s mark and only adding the gTLD .asia which is insufficient to distinguish the Domain Name from the mark.

 

Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not commonly known by the Domain Name. Complainant has not authorised Respondent to use Complainant’s mark.

 

The Domain Name resolves to a parking page displaying a search engine and sponsored listings which point to competitors of Complainant as well as Complainant itself. This is not a bona fide offering of goods and services or a legitimate non commercial or fair use.

 

The Domain Name has been registered and used in bad faith. Use of a domain name for third party links to competitors of Complainant results in a disruption of Complainant’s business and intentionally attracts Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s mark as to the source or affiliation of Respondent’s website.

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

 Complainant’s owns the registered trade mark CAPITAL ONE in, inter alia, the USA for banking and financial services with first use recorded as 1988.

 

The Domain Name registered in 2017. There is no evidence that it has been used.  The evidence submitted by Complainant of use in relation to links is in fact simply google referring users to capitalone.com when the Domain Name could not be found.

 

DISCUSSION

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:

 

 

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 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.”).

 

 Identical and/or Confusingly Similar

 

The Domain Name in this Complaint combines Complainant’s CAPITAL ONE mark (registered in the USA for financial services with first use recorded as 1988) and the gTLD .asia.

 

The gTLD .asia does not serve to distinguish the Domain Name from the CAPITAL ONE mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the  Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.

 

Rights or Legitimate Interests

 

Complainant has not authorised the use of its mark. Respondent has not answered this Complaint. While the Who is records the registrant as Capital Group. There is no evidence or reason to suggest Respondent is, in fact, commonly known by CAPITAL ONE or the Domain Name.

 

The evidence submitted by Complainant in relation to sponsored links is simply Google referring users to the capitalone.com page when the Domain Name could not be found. There has been no use of the mark. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4 (c) (i). )

 

As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

 

Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing Complainant’s mark. CAPITAL ONE is a well known mark and is distinctive and not a descriptive term.

 

The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <capitalone.asia> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated:  October 26, 2017