The Toronto-Dominion Bank v. Zhichao Yang
Claim Number: FA2005001895032
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are<tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com, registered with Name.com, Inc.; Above.com Pty Ltd.; GoDaddy.com, LLC; Moniker Online Services LLC; and NameSilo, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2020; the Forum received payment on May 6, 2020.
On May 6, 2020 and May 07, 2020, Name.com, Inc.; Above.com Pty Ltd.; GoDaddy.com, LLC; Moniker Online Services LLC; and NameSilo, LLC confirmed by e-mail to the Forum that the<tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names are registered with Name.com, Inc.; Above.com Pty Ltd.; GoDaddy.com, LLC; Moniker Online Services LLC; and NameSilo, LLC and that Respondent is the current registrant of the names. Name.com, Inc.; Above.com Pty Ltd.; GoDaddy.com, LLC; Moniker Online Services LLC; and NameSilo, LLC have verified that Respondent is bound by the respective Name.com, Inc.; Above.com Pty Ltd.; GoDaddy.com, LLC; Moniker Online Services LLC; and NameSilo, LLC registration agreements 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 May 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 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@tdfiitloan.com, postmaster@tdfitsloan.com, postmaster@tdfittloan.com, postmaster@tdfitlloan.com, postmaster@tdftiloan.com. Also, on May 13, 2020, 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 June 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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, The Toronto-Dominion Bank, is a Canadian bank. Complainant asserts rights in the TD mark through registration of the mark with multiple trademark organizations, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,649,009, registered on June 25, 1991). Respondent’s <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names are confusingly similar to Complainant’s mark as they incorporate the mark in its entirety and merely add misspellings of the term “fit loan” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names. Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s TD mark. Additionally, respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain names to host competing hyperlinks.
Respondent registered and uses the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names in bad faith. Respondent has a history of bad faith registration and use of domain names. Respondent disrupts Complainant’s business in an attempt to confuse Internet users for commercial gain. Respondent’s registration of the disputed domain names is an example of typosquatting. Finally, Respondent had knowledge of complainant’s rights in the TD mark at the time of registration
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the Toronto-Dominion Bank (“Complainant”), of Toronto, Ontario, Canada. Complainant is the owner of domestic and international registrations for the marks TD and TD BANK, as well as numerous related marks constituting the family of TD Bank marks. Complainant has continuously used its marks, in connection with its provision of financial and business goods and services, since at least as early as 1955. Complainant also owns and operates numerous websites incorporating its marks including <td.com>, <tdbank.com>, and <tdfitloan.com>.
Respondent is Zhichao Yang (“Respondent”), of Anhui, China. Respondent’s registrar’s addresses are listed as Phoenix, AZ, Miami, FL, Scottsdale, AZ and Denver, CO, in the USA, as well as Victoria, Australia. The Panel notes that the disputed domain names were registered on or about October 17, 2019.
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”).
Complainant asserts rights in the TD mark through its registration of the mark with multiple trademark agencies. Registration of a mark with multiple trademark agencies around the world is sufficient to demonstrate rights in the mark under Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i)”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 1,649,009, registered on June 25, 1991). The Panel here finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names are confusingly similar to Complainant’s mark because the disputed domain names incorporates the TD mark in its entirety and merely adds misspellings of the term “fit loan” and the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Additionally, minor misspellings are not enough to change a finding of confusing similarity. See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”). The Panel here finds the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names, as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the TD mark. Where a response is lacking, relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by that name. 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). The WHOIS information for the disputed domain names show that the registrant’s name is “ZHICHAGO YANG” and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain names. The Panel here finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims Respondent fails to use the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain names to host competing hyperlinks. Using a disputed domain name to host competing third party links is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”). Here, Complainant provides screenshots of the disputed domain names’ websites which appear to feature third party links. The Panel here finds that Respondent’s use of the domain name indicates it lacks rights and legitimate interests in the disputed domain names per Policy ¶¶ 4(c)(i) and (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant claims Respondent’s use of the disputed domain names is to confuse Internet users familiar with Complainant for their own financial gain. Using a confusingly similar domain name to confuse Internet users is bad faith under Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Here, Complainant claims Respondent creates a likelihood of confusion with Complainant by registering five domain names that incorporate Complainant’s TD mark and various misspellings of “fit loan”, which demonstrates Respondent is using the disputed domain names to confuse internet users looking for Complainant. The Panel here finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that the misspellings of “fit loan” in the disputed domain names is an example of typosquatting. Typosquatting alone is evidence of bad faith under ¶ 4(c)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). As previously noted, each of the disputed domain names include a misspelling of the term “fit loan”, which Complainant claims is an attempt to capitalize on Internet users common typing errors. The Panel here finds Complainant is engaged in typosquatting thus supporting a finding of bad faith registration and use under Policy ¶ 4(a)(iii).
Finally, Complainant claims Respondent registered the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names with knowledge of Complainant’s rights in the TD marks. The Panel notes that a respondent’s actual knowledge of complainant’s mark is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel here finds that based on Respondent’s use of the disputed domain names Respondent had actual knowledge of Complainant’s rights in the mark and thus registered and used the disputed domain name in bad faith.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <tdfiitloan.com>, <tdfitsloan.com>, <tdfittloan.com>, <tdfitlloan.com>, and <tdftiloan.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 19, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page