The Toronto-Dominion Bank v. micheal scotthan / wallonway
Claim Number: FA1912001874596
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is micheal scotthan / wallonway (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <on-tdbank.com>, registered with NameCheap, Inc..
The undersigned certifies that he 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 December 10, 2019; the Forum received payment on December 10, 2019.
On December 11, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <on-tdbank.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2020 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@on-tdbank.com. Also on December 13, 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 January 6, 2020, 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.
A. Complainant
Complainant states that it uses the TD and TD BANK marks to provide and market financial products and services. Complainant has over 86,000 employees and over 25 million clients worldwide. In Canada, the retail bank operates as TD Canada Trust and serves more than 13 million customers at over 1,100 branches. In the United States, the company operates as TD Bank. TD Bank now serves more than 9 million customers with a network of more than 1,300 branches, primarily located in the eastern United States. TD also ranks among the world’s leading online financial services firms. Complainant is ranked number 54 on the 2018 Forbes Global 2000 listing. Brand Finance® Brand Directory, which ranks the world’s most valuable brands, ranks TD as number 118 on its 2018 Global 500 list. Complainant has rights in the TD BANK mark based upon registration in the United States in 2010.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it contains Complainant’s TD BANK mark in its entirety, merely adding a hyphen, the geographically descriptive term “ON” (the Canada Post abbreviation for Ontario), and the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s TD BANK mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to redirect Internet users to a website featuring links to third-party websites, some of which directly compete with Complainant's business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. Respondent has employed a privacy service to hide its identity. In addition, Respondent provided false WHOIS information. Respondent has failed to respond to Complainant’s cease-and-desist letters. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TD and TD BANK marks. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TD BANK and uses it to market banking services.
Complainant’s rights in its marks date back to at least 2010.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays advertising links to Complainant’s competitors. The WHOIS information is false.
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”).
The disputed domain name incorporates Complainant’s TD BANK mark, merely adding a hyphen, the geographically descriptive term “ON” (the Canada Post abbreviation for Ontario), and the generic top-level domain (“gTLD”) “.com.” Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 0914943 (Forum Mar. 27, 2007) (finding that the addition of geographic terms, such as “cancun” to the CHEAPTICKETS mark in the <cheapticketscancun.com> domain name, among others, does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Skype Ltd. v. Sacramento, FA 0747948 (Forum Aug. 30, 2006) (“The addition of the geographic term “Brasil” does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i)”); see also Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark”); see alsoTrip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel and finds that the <on-tdbank.com> domain name is confusingly similar to Complainant’s TD BANK mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s TD BANK mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies registrant as “micheal scotthan / wallonway”. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent uses the disputed domain name to redirect Internet users to a website featuring advertising links to third-party websites, some of which directly compete with Complainant’s business. Offering links to products in competition with Complainant can evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and/or (iii). See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business.). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
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, as already noted, Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the resolving website which features click-through advertisements that redirect users to Complainant’s competitors. Using a confusingly similar domain name to disrupt a complainant’s business and commercially benefit via competing, pay-per-click links can evince bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent has provided false WHOIS information: according to the WHOIS, Respondent’s physical address is “Orlando Florida P 254526 Nigeria.” This address is false because Orlando, Florida is located in the United States, and not Nigeria. The postal code “254526” also does not exist. A respondent who has provided false contact information when registering a disputed domain name have acted in bad faith per Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (Forum Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (Forum Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (Forum May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (Forum June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (Forum July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to 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 <on-tdbank.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 6, 2020
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