The Toronto-Dominion Bank v. Kelly Davies
Claim Number: FA1712001761567
Complainant is The Toronto-Dominion Bank ("Complainant"), represented by CSC Digital Brand Services AB, Sweden. Respondent is Kelly Davies ("Respondent"), Arkansas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdfinanceservices.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 6, 2017; the Forum received payment on December 6, 2017.
On December 7, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <tdfinanceservices.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 December 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@tdfinanceservices.com. Also on December 7, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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 January 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is the second largest bank in Canada, and the sixth largest in North America. Complainant has over 86,000 employees and over 25 million clients worldwide. Complainant has used TD and related marks for its goods and services since 1969. Complainant's TD mark is registered in the United States and Canada; Complainant also owns a Canadian registration for TD FINANCING SERVICES. Complainant claims that its brand is well recognized globally, citing various surveys that rank it among the world's most valuable brands.
The disputed domain name <tdfinanceservices.com> was registered by Respondent in January 2017. Complainant states that Respondent is not sponsored by or affiliated with Complainant, has not been given permission to use Complainant's mark, and is not commonly known by the disputed domain name. Complainant states further that Respondent has used the disputed domain name to solicit wire transfers by impersonating Complainant in fraudulent email messages.
On these grounds Complainant contends that the disputed domain name is confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was 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 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 <tdfinanceservices.com> combines Complainant's registered mark TD with the generic term "finance services" (omitting the spaces) and the ".com" top-level domain; it also corresponds closely to another of Complainant's registered marks, TD FINANCIAL SERVICES. These facts are sufficient to show confusing similarity under paragraph 4(a)(i) of the Policy. See, e.g., Toronto-Dominion Bank v. John Smith, FA 1579229 (Forum Oct. 14, 2014) (finding <tdfinancialfunding.com> confusingly similar to TD); Toronto-Dominion Bank v. Above.com Domain Privacy, FA 1540025 (Forum Mar. 10, 2014) (finding <tdfinance.com> confusingly similar to TD or TD BANK). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its sole apparent use has been in connection with a fraudulent phishing scheme aimed at Complainant's customers. See, e.g., Bloomberg Finance L.P. v. Janina Deikuna, FA 1634141 (Forum Sept. 22, 2015) (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with a fraudulent scheme involving email messages attempting to defraud Complainant or its customers by exploiting that confusion, is indicative of bad faith under paragraph 4(b)(iv). See, e.g., Bloomberg Finance L.P., supra (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdfinanceservices.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 4, 2018
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