The Toronto-Dominion Bank v. Jeffrey J Leblanc Jr
Claim Number: FA1801001769723
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Jeffrey J Leblanc Jr (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdcanadatrust-bank.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 January 30, 2018; the Forum received payment on January 30, 2018.
On February 2, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <tdcanadatrust-bank.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 February 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 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@tdcanadatrust-bank.com. Also on February 2, 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.
A timely Response was received and determined to be complete on February 16, 2018. In addition, Respondent’s counsel sent two e-mails to the Forum, see below.
On February 19, 2018 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is the second largest bank in Canada by market capitalizations and deposits, and the sixth largest bank in North America. Complainant uses its TD, TD BANK, and CANADA TRUST marks to promote its products and services. Complainant established rights in the marks through registration in Canada in 1993.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s marks because it combines Complainant’s TD mark and CANADA TRUST mark and adds a hyphen, the term “bank,” and the generic top-level domain name (“gTLD”) “.com.”
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name as Complainant has not licensed or otherwise authorized Respondent to use its marks in any fashion. Further, Respondent is not commonly known by the disputed domain name as the WHOIS information of record lists “Jeffrey J Leblanc Jr” as the registrant of the domain name. Additionally, Respondent failed to use the domain name in connection with any bona fide offering of goods or services as the domain name resolves to a website which lacks content.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered the domain name to cause confusion among Internet users as to the source of the domain name and its connection to Complainant’s business. Further, Respondent fails to use the domain name, as it resolves to an inactive website. Finally, Respondent registered the domain name with constructive and actual knowledge of Complainant’s rights in the famous TD, TD BANK, and CANADA TRUST marks.
B. Respondent
In his formal Response, Respondent states, in pertinent part:
I am a retired public school teacher and principal. I do not own a domain name. I have never registered a domain name nor do I currently use a domain name. I have no idea what this complaint is about. Someone has obviously, without my knowledge or permission, used my name and address to register the disputed domain name. Please remove me from further involvement in this complaint.
In one of his e-mails to the Forum, Respondent’s counsel reiterates the information given above and states, in pertinent part:
We do not wish to hold on to the domain name and wish no further involvement in this dispute. Please advise how to proceed.
For the reasons set forth below, the Panel will not make any finding of fact.
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 the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., 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 to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <tdcanadatrust-bank.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 19, 2018
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