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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Capital One Financial Corporation v. Ryan Evans

Case No. D2008-1236

 

1. The Parties

The Complainant is Capital One Financial Corporation, Richmond, Virginia, United States of America, represented by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America.

The Respondent is Ryan Evans, Stanton, California, United States of America.

 

2. The Domain Names and Registrar

The disputed domain names <capitaloneautofinance.mobi> and <capitalonebank.mobi> are registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2008. On August 14, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain names at issue. On August 14, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 21, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 10, 2008. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 12, 2008.

The Center appointed Michael A. Albert as the sole panelist in this matter on September 23, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

As Respondent failed to respond to Complainant’s contentions, the Panel finds that the assertions of fact in the Complaint are undisputed. Complainant is the owner of United States of America (“U.S.”) Trademark Registration Nos. 1,992,626, 2,065,991, 2,065,992, and 2,727,453 for the mark CAPITAL ONE, covering a comprehensive range of banking and financial services.

Respondent registered the disputed domain names <capitaloneautofinance.mobi> and <capitalonebank.mobi> in October 2006. The domain names resolve to similar websites featuring links that direct to pages containing pay-per-click advertising links. A number of these advertising links resolve to the web pages of companies that are direct competitors of Complainant.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that the disputed domain names are identical or confusingly similar to its CAPITAL ONE mark. Specifically, Complainant asserts that the domain names incorporate its CAPITAL ONE mark in its entirety, along with descriptions of Complainant’s services. Complainant contends that consumers may erroneously believe that the Complainant has granted Respondent permission to use the mark when in fact it has not. Complainant notes that respondent registered the Domain Names in October 2006, while its four relevant marks issued between 1996 and 2003.

Complainant contends that Respondent has no rights or legitimate interest in the domain names. Complainant asserts that it has never authorized Respondent to use the mark, or to register or use the disputed domain names. Complainant also asserts that it has no business relationship with Respondent.

Complainant is not aware of any evidence that Respondent has ever been commonly known by the disputed domain names, nor of any evidence indicating that Respondent is making a legitimate noncommercial or fair use of the domain name.

Complainant contends that the disputed domain names were registered and are being used in bad faith. Complainant contends that by using the domain names, Respondent has intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its website, location, products or services offered on its websites. Complainant asserts that Respondent had constructive notice of Complainant’s mark, by virtue of Complainant’s U.S. Trademark registration, prior to registering the domain name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

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;

(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.

A. Identical or Confusingly Similar

The Panel concludes, first, that Complainant has sufficiently shown that it has rights in its CAPITAL ONE mark. Complainant owns U.S. federal registrations for this mark, which creates a presumption of ownership and validity.

Because the domain names use the mark in its entirety and merely add generic words relating to the nature of the business Complainant does in connection with that mark, the domain names are confusingly similar to the Complainant’s mark. See, e.g., Chippendales USA, LLC v. Latins Finest, WIPO Case No. D2003-0980 (February 6, 2004) (the addition of a generic term does not ordinarily serve to distinguish a domain name over registered marks).

B. Rights or Legitimate Interests

The Panel finds that Respondent has no rights or legitimate interest in the domain names. Complainant asserts, unrebutted, that it has never authorized Respondent to use the mark, or to register or use the disputed domain names. Complainant also asserts, again unrebutted, that it has no business relationship with Respondent.

It does not appear that Respondent has ever been commonly known by the disputed domain names, nor that Respondent is making a legitimate noncommercial or fair use of the domain names.

C. Registered and Used in Bad Faith

The domain names resolve to websites featuring links that direct to pages containing pay-per-click advertising links. A number of these advertising links resolve to the web pages of companies that are direct competitors of Complainant. Such usage strongly suggests bad faith. See Lilly ICOS LLC v. Emilia Garcia, WIPO Case No. D2005-0031 (March 29, 2005) (redirection to website of competitor offering generic version of complainant’s drug evidence of bad faith); Société des Hôtels Méridien v. Modern Ltd. - Cayman Web Dev., WIPO Case No. D2004-0321 (June 14, 2004) (“The question of whether use of a domain name is done in bad faith has been considered especially clear if the site contains links to websites belonging to competitors of the Complainant.”).

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <capitaloneautofinance.mobi> and <capitalonebank.mobi> be transferred to the Complainant.


Michael A. Albert
Sole Panelist

Dated: October 7, 2008

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2008/d2008-1236.html

 

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