Capital One Financial Corp. v. New Ventures Services / New Ventures Services
Claim Number: FA1505001620191
Complainant is Capital One Financial Corp. (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is New Ventures Services / New Ventures Services (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <capitalonefinancialbitcoin.com> and <capitalonebitcoin.com>, registered with Register.com, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2015; the Forum received payment on May 19, 2015.
On May 20, 2015, Register.com, Inc. confirmed by e-mail to the Forum that the <capitalonefinancialbitcoin.com> and <capitalonebitcoin.com> domain names are registered with Register.com, Inc. and that Respondent is the current registrant of the names. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 May 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2015 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 email@example.com, firstname.lastname@example.org. Also on May 21, 2015, 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 16, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Complainant states that it owns numerous registered trademarks, dating back to 1995, for the mark CAPITAL ONE. The mark is well known and it is used by Complainant to market a range of banking and financial services around the world.
According to Complainant, the disputed domain names are confusingly similar to its mark because Respondent’s domain names contain Complainant’s mark in its entirety and simply add descriptive and/or generic terms. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. It is not commonly known by the disputed domain names. Complainant has never authorized Respondent to use its mark and Respondent is not a licensee of Complainant. Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial of faire use. On the contrary, Respondent uses the disputed domain names to resolve to a web site that provides links to other financial institutions, including some of Complainant’s competitors. This cannot be considered to be a legitimate use of the disputed domain names. Complainant cites UDRP precedents to support its position.
Complainant states that Respondent’s use of the disputed domain names results in a disruption of Complainant’s business and intentionally attracts Internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent’s websites provide links to third-party websites, some of which are owned by Complainant’s competitors, whereby, presumably, Respondent receives some form of monetary gain through the links found on the web page. This constitutes bad faith registration and use. Complainant cites UDRP precedents to support its position.
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for numerous marks around the world that include the name CAPITAL ONE, dating back to 1995. Its marks are well-known in the financial industry.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names were registered in 2013.
The products and services offered by Complainant are widely used and well known.
Respondent is using the disputed domain names to resolve to web sites containing commercial links to some of Competitor’s competitors.
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(e), 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 (Nat. Arb. 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 Panel finds that the disputed domain names are confusingly similar, in the sense of the Policy, to Complainant’s mark because they consist of the mark and generic and/or descriptive terms. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”).
Respondent is using the disputed domain names to point to websites that contains commercial links to some of Complainant’s competitors.
The Panel finds that Respondent is disrupting Complainant’s business and so its use of the disputed domain names does not fall within the parameters of a bona fide offering of goods or services pursuant to ¶ 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to ¶ 4(c)(iii) of the Policy. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, in the Panel’s view, Respondent’s actual use of the disputed domain names (as noted above) is clearly not bona fide, because Respondent uses the disputed domain names to resolve to web sites that provides commercial links to some of Complainant’s competitors. Respondent likely receives click through advertising revenue from these links. This indicates that Respondent has registered and is using the disputed domain names to disrupt Complaint’s business; and that it is attempting to commercially profit from a likelihood of confusion. This constitutes bad faith registration and use under Policy ¶¶ 4(b)(iii) and 4(b)(iv). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <capitalonefinancialbitcoin.com> and <capitalonebitcoin.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 17, 2015
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