Capital One Financial Corp. v. Tulip Trading Company
Claim Number: FA1805001787969
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Tulip Trading Company (“Respondent”), Charlestown, Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonecardlogin.com>, registered with Key-Systems GmbH.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge, she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically May 22, 2018; the Forum received payment May 22, 2018.
On May 23, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the <capitalonecardlogin.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH verified that Respondent is bound by the Key-Systems GmbH registration agreement and 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 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 2018, 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@capitalonecardlogin.com. Also on May 25, 2018, 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 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit here as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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’s Contentions in this Proceeding:
Complainant, Capital One Financial Corporation, is a major financial institution that helped pioneer the mass marketing of credit cards. Complainant has rights in the CAPITAL ONE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,992,626, registered Aug. 13, 1996). See Amend. Compl. Ex. A, Attach. 1. Respondent’s disputed <capitalonecardlogin.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark because it contains the mark and merely adds the generic terms “card” and “login” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <capitalonecardlogin.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its CAPITAL ONE mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “Tulip Trading Company” as the registrant. See Compl. Ex. B. Respondent is not using the <capitalonecardlogin.com> domain name in connection with any bona fide offering of goods or services or any legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to a website featuring a search engine and links related to Complainant’s business and Complainant’s competitors.
Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users to Respondent’s website featuring a search engine and links to Complainant’s competitors. Additionally, Respondent attempts to create a likelihood of confusion with Complainant’s CAPITAL ONE mark for commercial gain. Finally, Respondent registered the <capitalonecardlogin.com> domain name using a privacy service.
B. Respondent’s Allegations in this Proceeding:
Respondent did not submit a Response. The Panel notes, however, that Respondent registered the <capitalonecardlogin.com> domain name August 3, 2017, some twenty-one years after Complainant established rights in the CAPITAL ONE mark. See Amend. Compl. Ex. B.
Complainant has rights to and legitimate interests in the mark contained within the disputed domain name in its entirety.
Respondent has no such rights or legitimate interest in the domain name because it contains and wrongfully uses Complainant’s protected mark that is contained within it in its entirety.
Respondent registered a domain name containing Complainant’s protected mark in its entirety and the domain name is confusingly similar to the mark.
Respondent registered and diverts the domain name in an effort to compete with Complainant and registered and uses the mark in bad faith.
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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant has rights in the CAPITAL ONE mark based upon registration with the USPTO. Registration with the USPTO is sufficient to establish Complainant’s rights in a mark irrespective of where Respondent resides under Policy ¶ 4(a)(i). See Viber Media S.ŕ r.l. v. Kristaps Sirmais / SIA "FUN FACTORY", FA 1626671 (Forum Aug. 4, 2015) (“Accordingly, even though Respondent reportedly resides in Latvia, the Panel finds find that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i).”). Complainant provides a copy of its USTPO registration (e.g., Reg. No. 1,992,626, registered Aug. 13, 1996). See Amend. Compl. Ex. A, Attach. 1. Therefore, the Panel finds that Complainant established rights in the CAPITAL ONE mark under a Policy ¶ 4(a)(i) analysis.
Next, Complainant argues that the <capitalonecardlogin.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark because the domain name contains the entire mark, adds generic words, and adds a gTLD. Addition of generic terms and a gTLD do not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Here, Complainant alleges that Respondent adds the generic terms “card” and “login” as well as the “.com” gTLD. Therefore, the Panel finds that the <capitalonecardlogin.com> domain name is confusingly similar to Complainant’s CAPITAL ONE mark pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a disputed domain name that is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights and Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name and Complainant has not licensed or otherwise authorized Respondent to use its CAPITAL ONE mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record for the <capitalonecardlogin.com> domain name lists “Tulip Trading Company” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the <capitalonecardlogin.com> domain name.
Next, Complainant alleges that Respondent uses the domain name to resolve to a website featuring a search engine and hyperlinks related to Complainant or Complainant’s competitors. Use of a domain name to resolve to a website containing a search engine and competing hyperlinks may not be considered a bona fide offering of goods and services or legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also Yahoo! Inc. v. Web Master, FA 127717 (Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services). Complainant provided screenshots <capitalonecardlogin.com> website, which indicate that the site features a search engine and links such as “CAPITAL ONE VISA CARD LOGIN,” “CAPITALONE,” and “APPLY CAPITAL ONE.” See Amend. Compl. Ex. D. Therefore, the Panel finds that Respondent failed make use of the <capitalonecardlogin.com> domain name in a bona fide offering or fair use under Policy ¶¶ 4(c)(i) or (iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the
disputed domain name; Complainant satisfied the elements of ICANN Policy ¶
4(a)(ii).
Registration and Use in Bad Faith:
Complainant argues that Respondent registered and uses the <capitalonecardlogin.com> domain name for the purpose of disrupting Complainant’s business and to commercially benefit from the confusion created with Complainant’s mark. Use of a domain name to disrupt a Complainant’s business or create confusion as to the source, sponsorship, affiliation or endorsement of the content therein for commercial gain evidences bad faith under Policy ¶ 4(b)(iii) and (iv). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to competing websites. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Complainant alleges that screenshots of the <capitalonecardlogin.com> website indicate that the site features multiple links to Complainant’s competitors from which Respondent presumably derives or attempts to acquire a profit. See Amend. Compl. Ex D. Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonecardlogin.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 3, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page