DECISION

The Toronto-Dominion Bank v. Kennedy Oluoch

Claim Number: FA1806001790117

PARTIES

Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Kennedy Oluoch (“Respondent”), Kenya.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <tdonlinebk.com>, registered with Shinjiru Technology Sdn Bhd.

PANEL

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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on June 5, 2018; the Forum received payment on June 5, 2018.

On June 6, 2018, Shinjiru Technology Sdn Bhd confirmed by e-mail to the Forum that the <tdonlinebk.com> domain name is registered with Shinjiru Technology Sdn Bhd and that Respondent is the current registrant of the name. Shinjiru Technology Sdn Bhd has verified that Respondent is bound by the Shinjiru Technology Sdn Bhd 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 June 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2018 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@tdonlinebk.com. Also on June 8, 2018, 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 July 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.

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 a response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant

Complainant is the second largest bank in Canada and sixth largest in North America.

Complainant uses the TD and TD BANK marks to manage and market its financial products and services.

Complainant holds a registration for the TD service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,041,792, registered January 10, 2006, renewed as of March 9, 2016.

Respondent registered the domain name <tdonlinebk.com> on March 2, 2018.

The domain name is confusingly similar to Complainant’s TD mark.

Respondent has not been commonly known by the domain name.

Complainant has not granted Respondent permission to use the TD mark for any purpose.

Respondent is not using the domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use.

Rather, the domain name resolves to an inactive webpage with no substantive content.

Respondent does not have rights to or legitimate interests in the domain name.

Respondent has engaged in a pattern of bad faith registration of domain names in that it owns numerous domain names infringing on famous third-party marks.

Complainant contacted Respondent on March 9, 2018, through a cease and desist letter sent via an email message in which Complainant advised Respondent that the unauthorized use of the TD mark in the domain name violated Complainant’s rights in that mark.

In the same message, Complainant requested voluntary transfer of the domain name to Complainant.

Respondent replied to that message with a written expression of willingness to transfer the domain name, but also indicating that it wished to receive a payment of money in return.

Respondent registered the domain name with knowledge of Complainant’s rights in the TD mark.

Respondent has registered and uses the domain name in bad faith.

B. Respondent

Respondent failed to submit a Response in this proceeding. However, it appears from the record that Respondent has consented in writing to the transfer of the contested <tdonlinebk.com> domain name to Complainant. It further appears that Respondent has requested monetary compensation in exchange for transfer of the domain name, but that Complainant has declined to give any such compensation.

DISCUSSION

Respondent has defaulted on its obligation to submit a Response to the Complaint filed herein in compliance with the requirements of the Policy and its accompanying Rules. Therefore, upon a showing of jurisdiction, notice of the institution of this proceeding and an opportunity for Respondent to respond, plus a prima facie showing of facts sufficient to support findings favorable to Complainant’s request for transfer of the domain name to it, all of which have been adequately presented in the Complaint and associated papers, it appears that Complainant is entitled to the requested transfer without regard to any exchange of compensation between the parties. See Rules 4, 5 and 14 of the Rules for Uniform Domain Name Dispute Resolution Policy (“the Rules”).

Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel a decision that a domain name be transferred:

i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

ii. Respondent has no rights to or legitimate interests in respect of the domain name; and

iii. the same domain name has been registered and is being used by Respondent in bad faith.

Notwithstanding the foregoing, 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.”

Further, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions. See, for example, Disney Enterprises, Inc. v. Morales, FA 475191 (Forum, June 24, 2005):

[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial [sic] to forego the traditional UDRP analysis and order the transfer of the domain names.

DECISION

Respondent does not contest the material allegations of the Complaint, and, in particular, it does not contest Complainant’s request that the disputed domain name be transferred to Complainant. Rather, in response to Complainant’s demand that the domain name be transferred to it, Respondent has expressed in writing its willingness to surrender it. Thus the parties have effectively agreed in writing to a transfer of the domain name from Respondent to Complainant without the need for further proceedings.

It is therefore Ordered that the domain name <tdonlinebk.com> be forthwith TRANSFERRED from Respondent to Complainant.

Terry F. Peppard, Panelist

Dated: July 12, 2018