The Toronto-Dominion Bank v. Meng Dan Qian / mengdanqian / QMD
Claim Number: FA2108001960053
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by Jason Hayden of CSC Digital Brand Services Group AB, Sweden. Respondent is Meng Dan Qian / mengdanqian / QMD (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tddfitloan.com> and <tdfotloan.com>, registered with Cloud Yuqu LLC and Sav.com, LLC.
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 August 18, 2021; the Forum received payment on August 18, 2021. The Complaint was received in English.
On August 18, 2021, Cloud Yuqu LLC and Sav.com, LLC confirmed by e-mail to the Forum that the <tddfitloan.com> and <tdfotloan.com> domain names (the “disputed domain names”) are registered with Cloud Yuqu LLC and Sav.com, LLC and that Respondent is the current registrant of the names. Cloud Yuqu LLC and Sav.com, LLC have verified that Respondent is bound by the Cloud Yuqu LLC and Sav.com, 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 August 23, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of September 13, 2021 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@tddfitloan.com, postmaster@tdfotloan.com. Also on August 23, 2021, the Chinese and English language 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 September 20, 2021, 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
Complainant alleges that because Respondent is conversant in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant demonstrates that the disputed domain names consist of Latin characters, the domain name terms “tdd fit loan” and “td fot loan” have no meaning in Chinese, and they resolve to webpages with third-party hyperlinks in English. The Panel finds that Respondent is conversant in English and will conduct the proceedings in English.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the same person or entity effectively controls the disputed domain names, 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 shows that the <tddfitloan.com> and <tdfotloan.com> domain names were registered one month apart using privacy shields from the same provider, and the registrant information uses the same telephone number and email address. The Panel finds that the disputed domain names are controlled by the same person or entity and will refer to the registrants collectively as “Respondent.”
A. Complainant
1. Respondent’s <tddfitloan.com> and <tdfotloan.com> domain names are confusingly similar to Complainant’s TD mark.
2. Respondent does not have any rights or legitimate interests in the <tddfitloan.com> and <tdfotloan.com> domain names.
3. Respondent registered and uses the <tddfitloan.com> and <tdfotloan.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant, The Toronto-Dominion Bank, provides financial and banking services. Complainant holds a registration for the TD mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3041792, registered January 10, 2006).
Respondent registered the disputed domain names registered on December 19, 2020 and January 29, 2021, and uses them to provide competing third-party hyperlinks.
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 rights in the TD mark based on registration of the mark with the USPTO. See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”).
Respondent’s <tddfitloan.com> and <tdfotloan.com> domain names use Complainant’s TD mark and simply add misspelled terms and a gTLD. The addition of terms, misspellings, and adding a gTLD to a mark is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”). Thus, the Panel finds that Respondent’s <tddfitloan.com> and <tdfotloan.com> domain names are confusingly similar to Complainant’s TD 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 does not have rights or legitimate interests in the <tddfitloan.com> and <tdfotloan.com> domain names because Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the TD mark. The WHOIS information identifies “Meng Dan Qian / mengdanqian / QMD” as the registrant of the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.)
Complainant also argues that Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses them to redirect users to webpages featuring competing third-party pay-per-click hyperlinks. Using a disputed domain name to divert users to competing monetized hyperlinks does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows 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).”) Complainant provides screenshots showing that the disputed domain names resolve to parked pages with competing hyperlinks from which Respondent likely receives compensation. The Panel finds that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <tddfitloan.com> and <tdfotloan.com> domain names in bad faith because Respondent engages in a pattern of bad faith registration and use. Under Policy ¶ 4(b)(ii), a respondent’s previous adverse UDRP rulings establish a pattern of bad faith registration and use, indicating bad faith in the present case. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant provides five previous cases in which Respondent was ordered to transfer infringing domain names. Thus, the Panel finds bad faith under Policy ¶ 4(b)(ii).
Complainant contends that Respondent uses the disputed domain names in bad faith since the domain names are used to host competing pay-per-click hyperlinks. Using a disputed domain name to offer pay-per-click hyperlinks to third parties that compete with a complainant may be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Accordingly, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Complainant also contends that Respondent had knowledge of Complainant’s rights in the TD mark when it registered the disputed domain names, based on the registration of the mark, the fame of the mark, and the inclusion of the descriptive term “loan” in the <tddfitloan.com> and <tdfotloan.com> domain names. The Panel agrees, noting Respondent’s direct competition with Complainant, and finds that Respondent had actual knowledge of Complainant’s rights in the TD mark prior to registering the disputed domain name, in bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see additionally Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”).
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 <tddfitloan.com> and <tdfotloan.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 21, 2021
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