Capital One Financial Corp. v. GuadaLupe Reyes
Claim Number: FA1908001857383
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is GuadaLupe Reyes (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <creditwisesolutions.com> registered with GoDaddy.com, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2019; the Forum received payment on August 15, 2019.
On August 15, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <creditwisesolutions.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 August 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 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@creditwisesolutions.com. Also on August 16, 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 September 9, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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, Capital One, is a financial services company. Complainant has rights in the CREDITWISE mark through its registration of the mark with the United States Patent and Trademark Office (“USTPO”) (e.g., Reg. No. 3,920,633 registered on Feb. 15, 2011). Respondent’s <creditwisesolutions.com> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the generic term “solutions” along with a “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <creditwisesolutions.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name redirects Internet users to Respondent’s own website.
Respondent registered and uses the <creditwisesolutions.com> domain name in bad faith because Respondent attempts to disrupt Complainant’s business and intentionally attracts, for commercial gain, Internet users seeking Complainant’s website. Respondent registered the disputed domain name with a privacy shield. Finally, Respondent failed to respond to Complainant’s cease and desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <creditwisesolutions.com> domain name.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the CREDITWISE mark through its registration of the mark with the USTPO. Registration with the USTPO generally establishes a complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides copies of its registration of the mark with the USTPO (e.g., Reg. No. 3,920,633 registered on Feb. 15, 2011). The Panel finds that Complainant has established rights in the CREDITWISE mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <creditwisesolutions.com> domain name is confusingly similar to Complainant’s mark because Respondent incorporates the mark in its entirety and merely adds a generic word and gTLD. The addition of a generic word and a gTLD is insufficient to defeat a finding of confusing similarity under Policy ¶ 4(a)(i). See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Here, Complainant argues that Respondent incorporates the CREDITWISE mark in its entirety, adds the generic term “solutions” and a “.com” gTLD. The Panel finds that the <creditwisesolutions.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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 shifts to Respondent to show it does have 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”). The Panel finds Complainant has made a prima facie case.
Complainant argues that Respondent lacks rights and legitimate interests in the <creditwisesolutions.com> domain name because Respondent is not authorized or permitted to use Complainant’s CREDITWISE mark and is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). 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)). Additionally, lack of authorization from a complainant to use its marks may be further evidence that a respondent is not commonly known by a disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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.”). The WHOIS information of record identifies the Respondent as “GuadaLupe Reyes” and no information in the record shows that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain name. The Panel finds that Respondent lacks rights and legitimate interests in respect of the <creditwisesolutions.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <creditwisesolutions.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain name redirects to Respondent’s own website. Using a disputed domain name to redirect Internet users to a respondent’s own website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides screenshots of the disputed domain name’s resolving webpage which features Complainant’s mark and offers financial related services, presumably for commercial gain. The Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <creditwisesolutions.com> domain name in bad faith because Respondent attempts to disrupt Complainant’s business and intentionally attracts, for commercial gain, Internet users seeking Complainant’s website. Using a disputed domain name to disrupt a complainant’s business and commercially gain is evidence of bad faith under Policy ¶¶ 4(b)(iii) and 4 (b)(iv). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Complainant provides screenshots of the disputed domain name’s resolving webpage which features Complainant’s mark and offers financial related services presumably for commercial gain. The Panel finds that Respondent registered and uses the <creditwisesolutions.com> domain name in bad faith under Policy ¶¶ 4(b)(iii) and 4(b)(iv).
Complainant has proved this element.
DECISION
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 <creditwisesolutions.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: September 13, 2019
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