The Toronto-Dominion Bank v. GEORGE WASHERE
Claim Number: FA1710001752047
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is GEORGE WASHERE (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mydocumentstdbank.com>, registered with eNom, LLC.
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 Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2017; the Forum received payment on October 4, 2017.
On October 5, 2017, eNom, LLC confirmed by e-mail to the Forum that the <mydocumentstdbank.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 October 10, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 2017 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@mydocumentstdbank.com. Also on October 10, 2017, 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 November 3, 2017, 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 provides banking and financial services throughout North America. It is the second largest bank in Canada by market capitalization and deposits, and the sixth largest bank in North America. The bank was created in 1955 through the merger of the Bank of Toronto and The Dominion Bank, which were founded in 1855 and 1869, respectively. Complainant has over 85,000 employees and over 22 million clients worldwide. In Canada, the retail bank operates as TD Canada Trust and serves more than 12 million customers at over 1,100 branches. TD Bank now serves more than 8 million customers with a network of more than 1,300 branches, primarily located in the eastern United States. It also ranks among the world’s leading online financial services firms. Complainant is ranked number 71 on the 2013 Forbes Global 2000 listing. Brand Finance® Brand Directory, which ranks the world’s most valuable brands, ranks Complainant as number 89 on its 2013 Global 500 list. Complainant uses the TD BANK mark to provide and market products and services; it has rights in the TD BANK mark based upon registration in the United States in 2010; the mark is also registered elsewhere around the world.
According to Complainant, the disputed domain name is identical or confusingly similar to its mark, as it contains the TD BANK mark in its entirety, eliminating the space, and adding the descriptive term “mydocuments” and the generic top level domain (“gTLD”) “.com.”
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the TD BANK mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, the disputed domain name is being used to divert Internet users to unrelated websites. The domain name also attempts to infect Internet users’ computers with malware. Finally, the disputed domain name is being offered for sale.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent has a pattern of engaging in bad faith registration. Respondent is offering to sell the disputed domain name. The disputed domain name resolves to a series of websites unrelated to Complainant’s business or attempts to install malware onto users’ computers. Respondent has employed a privacy service to hide its identity. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TD BANK mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TD BANK and uses it to market banking and financial services in several countries.
Complainant’s rights in its mark date back to at least 2010.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a series of websites unrelated to Complainant’s business, some of those sites attempt to install malware onto users’ computers; the disputed domain name has been offered for sale; Respondent has a pattern of bad faith registration of domain names.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the 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.”).
The disputed domain name is confusingly similar to the TD BANK mark, as it contains the mark in its entirety, eliminating the space, and adding the descriptive term “mydocuments” and the gTLD “.com.” Panels have consistently found that slight differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark or removal of a space, are irrelevant and do not distinguish the domain name from the mark incorporated therein. See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”). Similarly, the addition of a gTLD is irrelevant in determining whether the disputed domain name is confusingly similar. See Trip 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). Accordingly, the Panel finds that <mydocumentstdbank.com> does not contain changes that would sufficiently distinguish it from the TD BANK mark, and it finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s mark.
Complainant has not authorized Respondent to use the TD BANK mark in any way. Respondent 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 (ForumSept. 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 “George Washere.” Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds that Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a series of websites unrelated to Complainant and attempts to download malware on users’ computers. Thus Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use with the disputed domain name. See MoneyGram International, Inc. v. Domain Admin / Whois Privacy Corp., FA1698585 (Forum, Nov. 28, 2016) (“Where a domain name redirects Internet users to a rotating series of webpages, such use does not demonstrate rights or legitimate interests within the meaning of the Policy”); see also Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “fail[s] to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Thus the Panel finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii), and it 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 his 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 names.
Indeed, as already noted the disputed domain name diverts Internet users to a rotating series of webpages unrelated to Complainant’s business, some of which attempt to install malware onto users’ computers. This is evidence of bad faith use. See Natural Supplement Association, Incorporated d/b/a Experimental and Applied Sciences, Inc. v. Private Registration- Rnew, FA 1365571 (Forum, Feb. 9, 2011) (“[R]egistration and use of the disputed domain name to redirect Internet users to a series of websites offering products in competition with [c]omplainant constitutes a disruption of [c]omplainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Google, Inc. v. Petrovich, FA 1339345 (Forum Sept. 23, 2010) (disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). As such, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶¶ 4(a)(iii) and 4(b)(iv).
Further, Respondent publicly lists the disputed domain name for sale for an amount in excess of out of pocket expenses. Offering a domain name for sale can indicate bad faith registration. See World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs). Thus the Panel finds that Respondent acted in bad faith, in the sense of the Policy, by offering to sell the domain name to the public.
Further, Respondent is a serial cyber squatter: he has registered numerous domain names and has participated in multiple UDRP cases resulting in adverse decisions. This may be evidence of bad faith under the Policy. See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Accordingly, the Panel finds that Respondent registered the disputed domain name in bad faith by engaging in serial cybersquatting.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mydocumentstdbank.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 3, 2017
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