The Toronto-Dominion Bank v. Suspended Domain
Claim Number: FA2203001986518
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Suspended Domain (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2022; the Forum received payment on March 2, 2022.
On March 2, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 March 3, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2022 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@tdcorporatelogin.com, postmaster@tdfinancecorp.com, postmaster@tdcorplogin.com, postmaster@tdetreasurylogin.com, postmaster@tdcorporateportal.com. Also on March 3, 2022, 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 March 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names (also, the “disputed domain names”) are confusingly similar to Complainant’s TD mark.
2. Respondent does not have any rights or legitimate interests in the disputed domain names.
3. Respondent registered and uses the disputed domain names in bad faith.
B. Respondent did not file a Response.
Complainant, The Toronto-Dominion Bank, uses its TD mark in association with financial services. Complainant holds a registration for the TD mark with the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA396087, registered on March 20, 1992) and with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,041,792, registered on Jan. 10, 2006).
Respondent registered the <tdcorporatelogin.com> domain name on August 11, 2021, <tdfinancecorp.com> on August 10, 2021, <tdcorplogin.com> on August 11, 2021, <tdetreasurylogin.com> on August 11, 2021, and <tdcorporateportal.com> on August 11, 2021. Respondent uses two of the disputed domain names to resolve to a website with pay-per-click links offering competing financial services, and three of the disputed domain names do not resolve to any substantive content.
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 Panel finds that Complainant has rights in the TD mark through its registration with CIPO and the USPTO. See State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office).
Respondent’s <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names incorporate Complainant’s TD mark and add the terms “corporate”, “login”, “corp”, “finance”, “treasury”, or “portal” and the “.com” gTLD. The addition of generic terms and a gTLD does not distinguish a domain name from the mark it incorporates. See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names are confusingly similar to Complainant’s TD mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names because Respondent is not commonly known by the domain names and has not been authorized to use Complainant’s TD mark. The WHOIS information lists the registrant as “Suspended Domain.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Complainant argues that Respondent is not using the <tdcorporatelogin.com> and <tdfinancecorp.com> domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses them to display pay-per-click hyperlinks that redirect users to third-party websites that offer services that compete with Complainant or are unrelated to Complainant. Using a domain name to display competing and unrelated pay-per-click links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides screenshots of the websites at <tdcorporatelogin.com> and <tdfinancecorp.com> showing links to “Gmail Contact,” “Paypal Contact,” “Facebook Contact Email,” “Credit Report,” “Costco Mortgage,” and “Refiance Mortgage Va Loan.” The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent is also not using the <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use because these domains resolve to an inactive website. A domain that resolves to an inactive website may evince the lack of a bona fide offering of goods or services and a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or service… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). Complainant provides screenshots of the webpages at <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> showing “504 Gateway Time-out” as the only content. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and is a further demonstration that Respondent lacks rights under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <tdcorporatelogin.com> and <tdfinancecorp.com> domain names in bad faith to advertise links that are competing and unrelated to Complainant’s business. The Panel agrees and finds that Respondent registered and uses the <tdcorporatelogin.com> and <tdfinancecorp.com> domain names in bad faith under Policy ¶ 4(b)(iv). See 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).”).
Complainant argues that Respondent registered and uses the <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names in bad faith because Respondent does not make active use of them. Inactive use of a domain name may be evidence of a domain name registered and used in bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). Accordingly, the Panel finds that Respondent registered and uses the <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <tdcorporatelogin.com>, <tdfinancecorp.com>, <tdcorplogin.com>, <tdetreasurylogin.com>, and <tdcorporateportal.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 30, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page