The Toronto-Dominion Bank v. michael Orogodo / Secure inc.
Claim Number: FA1904001838898
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is michael Orogodo / Secure inc. (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <secure-tdbank.us>, registered with NameCheap, Inc..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 16, 2019; the Forum received payment on April 16, 2019.
On April 16, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <secure-tdbank.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 7, 2019 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@secure-tdbank.us. Also on April 17, 2019, 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 May 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 bank in North America. Complainant has rights in the TD BANK mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,788,055, registered May 11, 2010) and the Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA549396, registered Aug. 7, 2001). Respondent’s <secure-tdbank.us> domain name is confusingly similar to Complainant’s TD BANK mark as Respondent merely adds the generic term “secure,” a hyphen, and a “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <secure-tdbank.us> domain name. Respondent is not authorized to use Complainant’s TD BANK mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <secure-tdbank.us> domain name in bad faith. Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Finally, Respondent had actual knowledge of Complainant’s rights in the TD BANK mark prior to registering and subsequent use of the disputed domain name.
B. Respondent
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 has rights in the TD BANK mark through its trademark registrations with the USPTO (e.g., Reg. No. 3,788,055, registered May 11, 2010) and the CIPO (e.g., Reg. No. TMA549396, registered Aug. 7, 2001). Respondent’s <secure-tdbank.us> domain name is confusingly similar to Complainant’s TD BANK mark.
Respondent registered the <secure-tdbank.us> domain name on February 21, 2019.
Respondent has no rights or legitimate interests in the <secure-tdbank.us> domain name. Respondent attempts to pass off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <secure-tdbank.us> domain name 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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the TD BANK mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO and the CIPO. See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“Registering a mark with multiple trademark agencies around the world is sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <secure-tdbank.us> domain name is confusingly similar to the TD BANK mark, as the name incorporates the mark in its entirety along with a generic term “secure,” a hyphen and a “.us” ccTLD.
Respondent has no rights or legitimate interests in the <secure-tdbank.us> domain name. Complainant has not authorized Respondent to use the TD BANK mark. The WHOIS information of record identifies the registrant of the at-issue domain name as “michael Orogodo / Secure inc..” WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way.”). Therefore, Respondent has not been commonly known by the <secure-tdbank.us> domain name under Policy ¶ 4(c)(iii).
Moreover, the Panel agrees that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, the Panel finds that Respondent has failed Policy ¶ 4(c)(i).
Respondent has failed to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme. Use of a disputed domain name to pass off in an attempt to acquire users’ personal information is not a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) . . .”). Complainant provides screenshots of the disputed domain name’s resolving website which features a similar color scheme to Complainant’s website and solicits users’ login information. Additionally, the disputed domain name’s resolving website also contains a user warning for a deceptive website.
Respondent’s bad faith is shown by its use of the <secure-tdbank.us> domain name to pass off as Complainant in furtherance of a phishing scheme. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (phishing for information is evidence of bad faith under Policy ¶ 4(a)(iii).
Respondent had actual knowledge of Complainant’s rights in the TD BANK mark the <secure-tdbank.us> domain name prior to registering and using the disputed domain name. Actual knowledge is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <secure-tdbank.us> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 23, 2019
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