TD Ameritrade IP Company, Inc. v. Yuliya Schjokina
Claim Number: FA1912001876758
Complainant is TD Ameritrade IP Company, Inc. (“Complainant”), represented by David M. Kramer of DLA Piper LLP (US), District of Columbia, USA. Respondent is Yuliya Schjokina (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thinkorswim.pro>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 26, 2019; the Forum received payment on December 26, 2019.
On December 30, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <thinkorswim.pro> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 21, 2020 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@thinkorswim.pro. Also on December 31, 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. Respondent did however send an e-mail to the Forum, see below.
On January 24, 2020, 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. 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 states that it is a leader in investment services. For over 35 years, it has remained a pioneer in an industry that continues to innovate new ways that make Wall Street more accessible to the individual investor. In the 1980s and 1990s, Complainant pioneered a number of ‘firsts,’ leveraging technology to make investing easier, faster, and more efficient. The company was the first to offer touch tone phone trading, in 1988. In keeping with its history of innovation, in 2001 Complainant launched its thinkorswim platform. The thinkorswim platform is a professional-level financial trading platform for serious traders looking for elite-level tools and sophisticated analytical resources for idea generation, and efficient trading strategy execution. Complainant’s customers can access the platform via the <thinkorswim.com> website and corresponding software. Complainant has rights in the THINKORSWIM mark based upon registration in the United States in 2014. The THINKORSWIM mark has been promoted extensively among the purchasing public throughout the United States on a frequent basis through a variety of media, including the Internet and online sources. The well-known THINKORSWIM mark is easily recognizable to the trade and public as originating from Complainant. As a result, the THINKORSWIM mark and the goodwill associated therewith are of inestimable value to Complainant.
Complainant alleges that the disputed domain name is identical and/or confusingly similar to its THINKORSWIM mark, as it contains the mark in its entirety, merely adding the “.pro” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s THINKORSWIM mark and is not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to redirect users to Respondent’s website that directly competes with Complainant’s business.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. The check-out process on the resolving website could be used to steal the financial information of Complainant’s customers. Additionally, Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge or constructive notice of Complainant’s THINKORSWIM mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in its e-mail to the Forum, Respondent states (verbatim): “Friends, please return my domain. I removed the cast and do another. but i need my domain. I paid for it and spent a lot of money on promotion. please return the domain. or return the money for compensation. thanks.”
Complainant has registered trademarks rights for the mark SINKORSWIM and uses it to provide tools and sophisticated analytical resources for idea generation, and efficient trading strategy execution. The mark was registered in 2014.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2018.
The resolving website offers products and services that compete with those of Complainant.
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 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”).
The disputed domain name incorporates Complainant’s mark in its entirety, merely adding the “.pro” gTLD. Additions of a gTLD to a complainant’s mark is irrelevant in determining whether the disputed domain name is confusingly similar per Policy ¶ 4(a)(i). See 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 the <thinkorswim.pro> domain name is identical to Complainant’s THINKORSWIM mark per Policy ¶ 4(a)(i).
Respondent is not authorized to use Complainant’s THINKORSWIM mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies registrant as “Yuliya Schjokina”. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent uses the disputed domain name to redirect users to Respondent’s competing website. Use of a disputed domain name to offer competing products and services may not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) & (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is disrupting Complainant’s business and diverting users to the disputed domain name to offer competing goods and services. Using a disputed domain name to mislead users and redirect them to a competing website may indicate bad faith per Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thinkorswim.pro> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 24, 2020
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