The Toronto-Dominion Bank v. michal restl c/o Dynadot Privacy
Claim Number: FA1404001554490
Complainant is The Toronto-Dominion Bank (“Complainant”), Canada. Respond-ent is michal restl c/o Dynadot Privacy (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue, all of which are registered with Dynadot, LLC, are <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com>, and <tdbankauto.com>.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on April 16, 2014; the National Arbitration Forum received payment on April 16, 2014.
On April 17, 2014, Dynadot, LLC confirmed by e-mail message addressed to the National Arbitration Forum that the domain names <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com>, and <tdbankauto.com> are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 April 17, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 7, 2014 by which Re-spondent could file a Response to the Complaint, via e-mail message addressed to all entities and persons listed on Respondent’s registration as technical, ad-ministrative, and billing contacts, and to postmaster@tdbankbusinessdirect.com, postmaster@tdbankonlinelogin.com, postmaster@tdbanksignin.com, postmast-er@tdbankstock.com, postmaster@tdbankauto.com. Also on April 17, 2014, 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 tech-nical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 13, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 Not-ices, 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 National Arbitration 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
Complainant, the second largest bank in Canada and the sixth largest bank in North America, has been in business since 1955.
Complainant operates two primary websites, located at <tdbank.com> and <td.com>.
Complainant has rights in the TD BANK trademark, used in connection with banking and financial services.
Complainant holds registrations for the TD BANK trademark, on file with the United States Patent and Trademark Office (“USPTO”) (including Reg. No. 3,788,055, registered May 5, 2011).
Respondent registered all of the domain names <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com> and <tdbankauto.com> on July 8, 2013.
The domain names are all confusingly similar to Complainant’s TD BANK mark.
Respondent has not been commonly known by any of the disputed domain names, and Complainant has not authorized Respondent to use its TD BANK mark in any way.
Respondent uses the <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com>, and <tdbankauto.com> domain names to display links to third-party websites, some of which directly compete with Com-plainant’s business.
Respondent presumably receives click-through revenue from the operation of these links.
Respondent does not have any rights to or legitimate interests in any of the disputed domain names.
The <tdbankbusinessdirect.com> domain name occasionally redirects Internet users to a website offering the opportunity to “Get a Credit Score from all 3 Credit Bureau,” so that it appears that Respondent uses its resolving website to phish for personal information of Internet users, including their names and social se-curity numbers.
Respondent’s use of the domain names disrupts Complainant’s business.
Respondent’s employment of the domain names is an effort to attract Internet users to its resolving websites for its commercial gain by creating a likelihood of confusion with Complainant’s TD BANK mark.
Respondent knew of Complainant and its TD BANK mark prior to registering the <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com>, and <tdbankauto.com> domain names.
Respondent registered and uses those domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the TD BANK trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding a UDRP complainant’s registration of its HONEYWELL mark suf-ficient to establish its rights in the mark under the Policy ¶ 4(a)(i)).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s domain names: <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com> and <tdbankauto.com> are all confusingly similar to Complainant’s TD BANK trade-mark. The domain names all incorporate Complainant’s mark in its entirety, removing the space between it terms, while adding in each instance one of the descriptive terms “business direct,” “online login,” “sign in,” “stock,” and “auto,” each of which describes an aspect of Complainant’s business, plus the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in form-ing the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See Novell, Inc. v. Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confus-ingly 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”).
See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding, under Policy ¶ 4(a)(i), that the elimination of spaces between the terms of the mark of another and the addition of a gTLD in creating a domain name do not establish distinctiveness from the mark).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by any of the domain names <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com> or <tdbankauto.com>, and that Complainant has not auth-orized Respondent to use its TD BANK trademark in any way. Moreover, the WHOIS record for all of the disputed domain names identifies the registrants as “michal restl c/o Dynadot Privacy,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by any of the disputed domain names so as to have acquired rights toor legitimate interests in any of them as provided in Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a re-spondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate in it within the meaning of Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as all other evidence in the rec-ord, gave no indication that that respondent was commonly known by the do-main names, and where a UDRP complainant had not authorized that respond-ent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the contested domain names to resolve to websites featur-ing links to third-party websites, some of which directly compete with the busi-ness of Complainant, and that Respondent presumably profits from this use of the domain names. This employment of the domain names is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommer-cial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (finding that the operation of a pay-per-click website resolving from a domain name that was confusingly similar to the mark of another was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Finally under this head of the Policy, Complainant contends that the domain name <tdbankbusinessdirect.com> sometimes redirects Internet users to a website offering the opportunity to “Get a Credit Score from all 3 Credit Bureau,” so that it appears that Respondent is using this website to phish for the personal information of Internet users, including their names and social security numbers. In Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004), a panel defined “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information.” The operation of a phishing scheme is evidence of a UDRP respondent’s lack of rights or legitimate interests in a contested domain name. See, for example, Victoria’s Secret Stores Brand Mgmt., Inc. v. Langham, FA 1345734 (Nat. Arb. Forum Oct. 21, 2010) (finding that the use of a disputed domain name to acquire personal information from Internet users that believe they are signing up for a gift card constitutes phishing, which evidences that a UDRP respondent lacks rights and legitimate interests in the domain name).
Therefore the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that each of Respondent’s use of each of the disputed domain names: <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com> and <tdbankauto.com>, disrupts Com-plainant’s business. Under Policy ¶ 4(b)(iii), this stands as evidence that the do-main names were registered and are being used in bad faith. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name that was confusingly similar to the mark of a UDRP complainant to attract Internet users to a directory website con-taining links to the websites of that complainant’s commercial competitors repre-sented bad faith registration and use under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent employs the contested domain names, each of which is confusingly similar to Complainant’s TD BANK mark, to profit from confusion caused among internet users as to the possibility of Complainant’s affiliation with the domain names. This demonstrates bad faith registration and use of the domain names under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (finding that the registration and use of a domain name which was confusingly similar to a UDRP complainant’s mark to direct Internet traffic to a “links page” in order to profit from click-through fees or other revenue sources constituted bad faith under Policy ¶ 4(b)(iv)).
In addition, we conclude from the record that Respondent knew of Complainant and its rights in the TD BANK trademark when it registered the contested domain names. This is independent proof of bad faith in the registration of the domain names. See GO Local NC Farms, LLC v. Paul Darcy, FA 1426087 (Nat. Arb. Forum March 13, 2012) (“[A] finding of bad faith hinges squarely on the prob-ability that it was more likely than not that [the] [r]espondent knew of, and tar-geted, [the] [c]omplainant’s trade mark.”); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where a respondent was "well-aware of” a UDRP complainant's YAHOO! mark at the time of its reg-istration of a domain name that was confusingly similar to that mark).
For all of these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain names <tdbankbusinessdirect.com>, <tdbankonlinelogin.com>, <tdbanksignin.com>, <tdbankstock.com>, and <tdbankauto.com> be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 27, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page