Capital One Financial Corp. v. Host Master / Transure Enterprise Ltd
Claim Number: FA1903001832549
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Host Master / Transure Enterprise Ltd (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <capitalonegm.com>, registered with Above.com Pty Ltd.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 5, 2019; the Forum received payment on March 5, 2019.
On March 5, 2019, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <capitalonegm.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 March 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 27, 2019 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@capitalonegm.com. Also on March 7, 2019, 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 March 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 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 rights in the CAPITAL ONE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,992,626, registered Aug. 13, 1996). Respondent’s <capitalonegm.com> domain name is confusingly similar to Complainant’s mark as it contains a misspelling of Complainant’s mark and adds the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <capitalonegm.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use its mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent’s website provides links to Complainant’s own business as well as other financial institutions, including some of Complainant’s competitors.
Respondent registered and uses the <capitalonegm.com> domain name in bad faith. Respondent is using the domain name to divert Internet customers seeking Complainant’s website to its own webpage advertising Complainant’s credit cards and also displays third-party links to Complainant’s competitors.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant 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 rights in the CAPITAL ONE mark through its registration of the mark with the USPTO (e.g. Reg. No. 1,992,626, registered Aug. 13, 1996). Respondent’s <capitalonegm.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <capitalonegm.com> domain name on May 17, 2018.
Respondent has no rights or legitimate interests in the <capitalonegm.com> domain name. Respondent’s website provides links to Complainant’s own business as well as other financial institutions, including some of Complainant’s competitors.
Respondent registered and uses the <capitalonegm.com> 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(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.”).
Complainant has rights in the CAPITAL ONE mark through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <capitalonegm.com> domain name is confusingly similar to Complainant’s mark as it contains a misspelling of Complainant’s mark and adds the “.com” gTLD.
Respondent has no rights or legitimate interests in the <capitalonegm.com> domain name. Complainant has not authorized Respondent to use the CAPITAL ONE mark. The WHOIS identifies “Host Master / Transure Enterprise Ltd” as the registrant of the domain name. Respondent is not commonly known by the <capitalonegm.com> domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Respondent’s resolving website provides links to Complainant’s own business as well as other financial institutions, including some of Complainant’s competitors. Using a domain name to display hyperlinks to services relating to a complainant usually does not amount to any bona fide offering of goods or services or a legitimate noncommercial or fair use. See Barclays PLC v. Antwan Barnes, FA 1806411 (Forum Oct. 20, 2018) (“Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).”).
Respondent registered and uses the <capitalonegm.com> domain name in bad faith by both diverting Internet customers seeking Complainant’s website to its own webpage advertising Complainant’s credit cards and displaying third-party links to Complainant’s competitors. Using a confusingly similar domain name to display competing third-party links can show bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonegm.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 10, 2019
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