The Toronto-Dominion Bank v. Gwendolyn Dillon / Christina Hopper Hopper
Claim Number: FA2010001918398
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Gwendolyn Dillon / Christina Hopper Hopper (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tdbankverifiedme.com> and <tdbankverification.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 27, 2020; the Forum received payment on October 27, 2020.
On October 31, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <tdbankverifiedme.com> and <tdbankverification.org> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com; Google LLC and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com; Google LLC has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com; Google LLC 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 November 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 7, 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@tdbankverifiedme.com, postmaster@tdbankverification.org, postmaster@tdbankstatement.com. Also on November 3, 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 December 14, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the disputed domain names are effectively controlled by the same person and/or entity, operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant claims that the domain names are under common control by a single entity as evinced by the fact that the domain names were all registered under the same email address and registered within a day of each other. In the absence of any allegation to the contrary, the Panel finds that the disputed domain names are controlled by one party and will refer to “Gwendolyn Dillon / Christina Hopper Hopper” as Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <tdbankverifiedme.com>and <tdbankverification.org> domain names are confusingly similar to Complainant’s TD BANK mark.
2. Respondent does not have any rights or legitimate interests in the <tdbankverifiedme.com>and <tdbankverification.org> domain names.
3. Respondent registered and uses the <tdbankverifiedme.com>and <tdbankverification.org> domain names in bad faith.
B. Respondent did not file a Response.
Complainant is the second largest bank in Canada and the sixth largest bank in North America. Complainant holds a registration for the TD BANK mark with multiple governmental agencies around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,788,055, registered May 11, 2010) as well as the Canadian Intellectual Property Office (e.g., Reg. No. TMA549396, registered Aug. 7, 2001).
Respondent registered the <tdbankverifiedme.com> on April 8, 2020, and the <tdbankverification.org> domain names on April 9, 2020, and uses them to redirect Internet users to a blank page that lacks content.
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 Panel finds that Complainant has established rights in the TD BANK mark for the purposes of Policy ¶ 4(a)(i) based on registration with the USPTO. See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <tdbankverifiedme.com> and <tdbankverification.org> domain names use Complainant’s mark and add the terms "verified me" or "verification" and gTLDs. These changes do not sufficiently distinguish a domain name from a mark for purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel therefore finds that Respondent’s <tdbankverifiedme.com> and <tdbankverification.org> domain names are confusingly similar to Complainant’s TD BANK mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent has no rights or legitimate interests in the <tdbankverifiedme.com> and <tdbankverification.org> domain names, as Respondent is not commonly known by the disputed domain names and Respondent is not authorized, licensed, or otherwise permitted to use the TD BANK mark. The WHOIS information for the disputed domain names lists the registrant of the disputed domain names as “Gwendolyn Dillon / Christina Hopper Hopper.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant also argues that Respondent fails to use the <tdbankverifiedme.com> and <tdbankverification.org> domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent is using the disputed domain name to redirect Internet users to a blank page. The inactive holding of a disputed domain name does not establish a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). Complainant provides a screenshot of the webpage resolving from the disputed domain names, which displays error messages and shows no substantive content. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that the only plausible use of the disputed domain names, consisting of Complainant's mark and security verification terms, is to create confusion with Complainant. The Panel agrees and finds that this disrupts Complainant’s business and demonstrates bad faith under Policy ¶ 4(b)(iii). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain).
Complainant asserts that Respondent use of the disputed domain names to display inactive sites also shows bad faith. The inactive holding of a disputed domain name can show bad faith registration and use under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). Complainant demonstrates that the disputed domain names do not resolve to any content. Therefore, the Panel finds bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the domain names with knowledge of Complainant's mark, given the fame of the mark. The registration of a disputed domain name with actual knowledge of a complainant's rights in a mark can show bad faith registration under Policy ¶ 4(a)(iii). Evidence that a mark is famous can show that a respondent had actual knowledge of a complainant’s rights in a mark at the time of registration of a disputed domain name. See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous). Complainant submits awards and recognition of Complainant's business, Complainant's 2019 annual report, and Complainant's website analytics as evidence of the fame of the mark. The Panel finds that Respondent had actual knowledge of the well-known TD BANK mark at the time of registration of the disputed domain names, which constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdbankverifiedme.com> and <tdbankverification.org> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 16, 2020
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