The Toronto-Dominion Bank v. zkr dz / James Rodriguez / james teare / Isac marvin / jay p
Claim Number: FA2203001987222
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is zkr dz / James Rodriguez / james teare / Isac marvin / jay p (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 7, 2022; the Forum received payment on March 7, 2022.
On March 8, 2022; March 9, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 March 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 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@tdeasy-weblogin.com, postmaster@wwweasyweb-td.com, postmaster@easy-login-td.net, postmaster@tdeasy-web.net, postmaster@tdca-easyweb.com, postmaster@www-tdeasy-web.com. Also on March 15, 2022, 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 April 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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: MULTIPLE RESPONDENTS
Complainant alleges that the entities which control the domain names at issue are effectively controlled by the same person and/or entity. 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.”
The domain names in the present dispute are similarly constructed as each domain name contains Complainant’s TD and EASYWEB trademark and concludes with the “.com” or “.net” top-level domain name, Further, the domain names were each registered using a Toronto vicinity address between June 4, 2021 and July 11, 2021 via the same domain name registrar. Therefore, the at-issue domain names clearly appear to be related to, or controlled by, the same person, persons, or entity. Notably, Complainant’s contention that the domain names’ registrants be treated as a single entity in the instant proceeding is unopposed.
Based on the foregoing, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding. The registrants will collectively be referred to as Respondent.
A. Complainant
Complainant contends as follows:
Complainant is a banking and financial services company.
Complainant has rights in TD and EASYWEB through their registration with various trademark agencies, including the USPTO and CIPO.
Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names are identical of confusingly similar to Complainant’s marks as they incorporate the marks in their entireties and add various generic and descriptive words, along with multiple generic top-level domain (“gTLDs”).
Respondent lacks rights and legitimate interests in the Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names. Respondent is not commonly known by the at-issue domain names, nor has Complainant authorized or licensed Respondent to use its TD or EASYWEB marks in the at-issue domain names. Respondent does not use the domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair uses, but instead inactively holds the disputed domain names.
Respondent registered and uses Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names in bad faith. Respondent exhibits a pattern of bad faith registration and use. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the marks. Respondent inactively holds the domain names. Respondent hid its identity behind a WHOIS privacy service. Respondent failed to respond to Complainant’s cease-and-desist letters.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TD and EASYWEB trademarks.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademarks in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the TD and EASYWEB trademarks.
Respondent holds the at-issue domain names passively.
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 at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO and CIPO trademark registration for TD, and a CIPO registration for EASYWEB. A national trademark registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See THE TORONTO-DOMINION BANK v. Lhhon Hoy / Kathleen Kim / Grt Fyo / Leon Ho, FA 1724017 (Forum May 17, 2017) (finding registrations with the USPTO and CIPO are satisfactory demonstrations of Policy ¶ 4(a)(i) rights).
Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names each contain Complainant’s TD trademark, an irrelevant hyphen, and one or more generic terms and/or terms clearly suggestive of Complainant’s EASYWEB mark. Each domain name concludes with the “.com” or “.net” top-level domain name. The differences between any at-issue domain name and Complainant’s trademarks are insufficient to distinguish any of the domain names from Complainant’s marks for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names are each confusingly similar to a mark in which Complainant has rights. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also, Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a term and gTLD is insufficient in distinguishing an at-issue domain name from a mark under Policy ¶ 4(a)(i)).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Here, Respondent lacks both rights and legitimate interests in respect of each of the at-issue domain names. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
WHOIS information for the at-issue domain names identifies the nominal registrants/respondents as “zkr dz”, “James Rodriguez”, “James Teare”, “Isac Marvin” and “jay pD” and the record before the Panel contains no evidence that tends to prove that any of the nominal registrants is commonly known by an at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, or <www-tdeasy-web.com> for the purposes of 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).
Respondent’s <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names address either blank pages that lack content, or generic holding pages. Respondent’s passive holding of at-issue domain names constitutes neither a bona fide offering of goods or services nor legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Guess? IP Holder L.P. and Guess?, Inc. v. xi long chen, FA 1786533 (Forum June 15, 2018) (“The disputed domain name resolves to a parked page with the message, “website coming soon!” The Panel finds that this use does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii) and Respondent does not have rights or legitimate interests with respect of the domain name.”).
Given the forgoing and absent any contrary evidence from Respondent, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain names under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the at-issue domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned above regarding rights and legitimate interests, the Respondent holds each at-issue domain name passively. Respondent’s passive holding of the domain names indicates Respondent’s bad faith registration and use of such domain names 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.”); see also, Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).
Next, Respondent registered multiple confusingly similar domain names that are the subject of this proceeding thereby indicating a pattern of domain name abuse pursuant to Policy ¶ 4(a)(iii). Such pattern suggests bad faith in the instant case. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA1405001558045 (Forum July 10, 2014) (finding that the respondent’s registration of multiple domain names in the instant proceeding and prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TD and EASYWEB marks when it registered <tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> as domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademarks and from Respondent’s registration of multiple domain names confusingly similar to both Complainant’s TD and EASYWEB marks. Respondent’s registration of the six confusingly similar domain names while having knowledge of Complainant’s rights in both TD and EASYWEB shows Respondent’s bad faith registration and use of each such domain name pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the<tdeasy-weblogin.com>, <wwweasyweb-td.com>, <easy-login-td.net>, <tdeasy-web.net>, <tdca-easyweb.com>, and <www-tdeasy-web.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 11, 2022
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