TD Ameritrade IP Company, Inc. v. victor brown
Claim Number: FA2112001977249
Complainant is TD Ameritrade IP Company, Inc. (“Complainant”), represented by Lian Ernette of Holland Hart, Colorado, USA. Respondent is victor brown (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdameritradingoptions.com>, 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 15, 2021; the Forum received payment on December 15, 2021.
On December 16, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <tdameritradingoptions.com> 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 21, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 10, 2022 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@tdameritradingoptions.com. Also on December 21, 2021, 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 email to the Forum, see below.
On January 16, 2022, 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
Founded in 1975, Complainant is a United States investment services company offering an electronic trading platform. Since its founding, Complainant has been an innovator in the online trading industry through its offerings of extended-hours trading, investor behavior measuring tools, and first-of-its-kind trading on mobile devices. Complainant provides investing and trading services for over 11 million client accounts that total more than $1 trillion in assets, and custodial services for more than 6,000 independent registered investment advisors. Complainant’s customers place approximately 500,000 trades a day using services offered under Complainant’s famous TD AMERITRADE mark. Complainant asserts rights in the TD AMERITRADE mark through its registration of the mark in the United States in 2010.
Complainant alleges that the disputed domain name is identical or confusingly similar to its TD AMERITRADE mark as it incorporates the mark, only modifying the term “trade” to “trading”, and adding the generic term “options” and the “.com” generic top-level domain (gTLD). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use its TD AMERITRADE mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use. Instead, the resolving website mimics Complainant’s legitimate website, displaying Complainant’s mark and logo, and the physical address of one of Complainant’s offices. Respondent attempts to pass off as Complainant to offer services that compete with those of Complainant and to phish for users’ personal and financial information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business, as it creates a fraudulent assumption that Complainant and Respondent are associated. Respondent attempts to attract users for commercial gain by passing off as Complainant. Respondent had actual notice of Complainant’s rights in the TD AMERITRADE mark, evidenced by Respondent’s use of the mark, as well as the mark’s fame and notoriety. Finally, Respondent engages in a phishing scheme. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its email to the Forum, Respondent states, in pertinent part: “recently a client of mine added an addon to my host and the addon domain was reported and I have deleted the add-ons and all files related to the domain from my server to avoid any issues. Pls may I know why am still receiving the abuse mail and what can I do to stop it.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
The Panel interprets Respondent’s email as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <tdameritradingoptions.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 17, 2022
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