URS FINAL DETERMINATION


TD Ameritrade IP Company, Inc. v. WhoisGuard Protected / WhoisGuard, Inc. et al.
Claim Number: FA2008001910667


DOMAIN NAME

<thinkorswim.link>


PARTIES


   Complainant: TD Ameritrade IP Company, Inc. of Omaha, NE, United States of America
  
Complainant Representative: DLA Piper LLP (US) David M. Kramer of Washington, DC, USA

   Respondent: Think Or Swim Link Heammawihio Hokan of Panamá, Panama
  
Respondent Representative: Think Or Swim Link Heammawihio Hokan of Panama, Panama

REGISTRIES and REGISTRARS


   Registries: UNR Corp.
   Registrars: NAMECHEAP

EXAMINER


   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 Examiner in this proceeding.
   Ahmet Akguloglu, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: August 31, 2020
   Commencement: September 1, 2020
   Default Date: September 16, 2020
   Response Date: September 16, 2020
   Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT


   Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW


   Clear and convincing evidence.

FINDINGS and DISCUSSION


   Procedural Findings:  
      Multiple Complainants: The Complaint does not allege multiple Complainants.
      Multiple Respondents: The Complaint does not allege multiple Respondents.

   Findings of Fact: The Complainant claimed that TD Ameritrade has remained a pioneer in an industry that continues to innovate new ways that make Wall Street more accessible to the individual investor. TD Ameritrade (at the time, known as just “Ameritrade”) pioneered several ‘firsts,’ leveraging technology to make investing easier, faster, and more efficient. The Complainant claimed that they were the first to offer touch-tone phone trading, in 1988. The Complainant asserted that in 2001 they launched their thinkorswim platform. The thinkorswim platform is a professional-level financial trading platform for serious traders looking for elite-level tools and sophisticated analytical resources for idea generation, and efficient trading strategy execution. The Complainant claimed that the THINKORSWIM mark has been promoted extensively among the purchasing public throughout the United States frequently through a variety of media, including the Internet and online sources. The Complaianant claimed that the disputed domain name is identical to the THINKORSWIM mark, as the addition of the.LINK suffix to the domain name does not distinguish it from Complainant’s THINKORSWIM mark. The Complainant stated that the Complainant has no business relationship whatsoever with the Respondent. The Complainant has not licensed or otherwise permitted Respondent to use the THINKORSWIM mark or to apply for any domain name incorporating the THINKORSWIM mark. In this respect, The Complainant also asserted that the Respondent has no legitimate right or interest on the domain name and the domain name was registered and is being used in bad faith. The Respondent replied that; the disputed domain name is generic or descriptive and it is unacceptable, to cause damage to legitimate businesses, just, by the name of the business, contain a phrase previously used by a company. The Respondent claimed that it is usual to use English phrases in business life. The respondent asserted that they are not related to the mentioned trademark, nor they were aware of its existence.

  

URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.


[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


The Complainant has met its burden by clear and convincing evidence that the domain name is identical to the word mark THINKORSWIM for which the Complainant holds valid US registration which is in current use.


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


The Complainant did not authorize the Respondent for use of the THINKORSWIM trademark. The Respondent did not submit any evidence to the contrary that it has a legitimate interest in the usage of the THINKORSWIM trademark. Therefore, it is understood that the Respondent does not have any right or legitimate interest over the disputed domain name.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


Contrary to the Respondent’s allegations it is clear that “THINKORSWIM” is not a generic word and it has been using by the Complainant for a long time. The Respondent did not submit clear evidence regarding the descriptive nature of the “THINKORSWIM” word. Given the well-known status of the Complainant’s trademark, the Respondent was well aware of the Complainant and their rights on the trademark when they registered the domain name. Besides, the Respondent intentionally attempted to attract for commercial gain by registering the domain name. Accordingly, the Examiner finds that the Respondent registered and used the disputed domain name in bad faith.


FINDING OF ABUSE or MATERIAL FALSEHOOD


The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

Respondent has alleged that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. 

The Examiner finds as follows:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


After reviewing the parties submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

  1. thinkorswim.link

 


Ahmet Akguloglu
Examiner
Dated: September 21, 2020

 

 

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