The Toronto-Dominion Bank v. kethan kadapa
Claim Number: FA1711001759801
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is kethan kadapa (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <td-banklogin.com>, registered with GoDaddy.com, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 22, 2017; the Forum received payment on November 22, 2017.
On November 27, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <td-banklogin.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 November 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 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@td-banklogin.com. Also on November 27, 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 December 20, 2017, 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <td-banklogin.com> domain name is confusingly similar to Complainant’s TD mark.
2. Respondent does not have any rights or legitimate interests in the <td-banklogin.com> domain name.
3. Respondent registered and uses the <td-banklogin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is the second largest bank in Canada and the sixth largest bank in North America. Complainant registered its TD mark with the United States Patent and Trademark Office (“USPTO”)(Reg. No. 1,649,009, registered June 25, 1991, and also its TD BANK mark (Reg. No. 3,788,055, registered May 11, 2010). Complainant also registered the marks with the Canadian Intellectual Property Office (“CIPO”)(Reg. No. TMA644911, registered July 26, 2005, and Reg. No. TMA549396, registered Aug. 7, 2001).
Respondent registered the <td-banklogin.com> domain name on September 12, 2017, and uses it to resolve to a parked page that contains the “Go Daddy” domain search engine, a phone number, and hyperlinks to other websites.
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 Panel finds that Complainant has rights in the TD and TD BANK marks pursuant to Policy ¶ 4(a)(i) based upon registrations with the USPTO and CIPO. See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <td-banklogin.com> domain name incorporates the TD BANK mark, and simply adds a hyphen, the “.com” gTLD, and the descriptive term “login.” Adding descriptive terms, inserting a hyphen, and appending a gTLD to a complainant’s mark does not sufficiently differentiate a domain name from a mark under Policy ¶ 4(a)(i). See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Forum Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)); see also 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). Therefore, the Panel finds that Respondent’s <td-banklogin.com> domain name is confusingly similar to Complainant’s TD BANK 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 claims that the Respondent has no rights or legitimate interests in the <td-banklogin.com> domain name, and is not commonly known by the disputed domain name. Complainant asserts that Respondent is not sponsored or affiliated with Complainant, and has no permission to use the TD BANK mark. The WHOIS information for the <td-banklogin.com> domain name identifies the registrant as “kethan kadapa.” Therefore, the Panel finds that Respondent is not commonly known by the <td-banklogin.com> domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names).
Complainant asserts that Respondent fails to use the <td-banklogin.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant demonstrates that Respondent’s <td-banklogin.com> domain name resolves into a parked page that contains the “Go Daddy” domain search engine, a phone number, and hyperlinks to other websites. The Panel finds that this use 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 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 services… 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.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent attempts to attract, for commercial gain, Internet users otherwise seeking Complainant to Respondent’s resolving website for presumed commercial gain. Use of a disputed domain name to intentionally attract Internet users for a respondent’s commercial gain does not constitute good faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). Respondent appropriates Complainant’s TD BANK mark and appends a term descriptive of Complainant’s business in an effort to confuse Internet users, no doubt for Respondent’s commercial gain. The Panel therefore finds that Respondent registered and used the <td-banklogin.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent does not make an active use of the disputed domain name and provides screenshot evidence of the resolving parked page. Thus, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Complainant asserts that, due to the fame of the TD and TD BANK marks around the world and Respondent’s appropriation of the marks into a confusingly similar domain name, demonstrates Respondent’s actual knowledge of Complainant’s rights in the marks prior to registration of the disputed domain name. The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the TD and TD BANK marks prior to registration, which is bad faith activity under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Complainant also claims that Respondent failed to respond to Complainant’s cease and desist letters, which can support a finding of bad faith per Policy ¶ 4(a)(iii). See Garrison Keillor, Minnesota Public Radio, Inc. v. Paul Stanton, FA 98422 (Forum Aug. 28, 2001) (Respondent’s failure to respond to Complainant's June 12, 2001, letter further demonstrates Respondent's lack of good faith intent in registration and use of the domain name.). Complainant sent Respondent a cease and desist email September 27, 2017, and further notifications on October 9, 2017 and October 19, 2017, and Respondent did not respond. The Panel agrees that this is further evidence of bad faith pursuant to 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 <td-banklogin.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 21, 2017
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