The Toronto-Dominion Bank v. Andre Micheal / Drive
Claim Number: FA2305002043287
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services Group AB, Sweden. Respondent is Andre Micheal / Drive (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdcorporatebanking.com>, registered with GoDaddy.com, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on May 5, 2023. Forum received payment on May 5, 2023.
On May 5, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <tdcorporatebanking.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 30, 2023 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@tdcorporatebanking.com. Also on May 9, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 31, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Respondent has no rights or legitimate interests in the <tdcorporatebanking.com> domain name. Respondent is not commonly known by the domain name and is not sponsored by or affiliated with Complainant in any way. Complainant has not given Respondent permission to use Complainant’s trademarks in any manner, including in domain names. Respondent does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect Internet users to Complainant’s own website.
Respondent registered the <tdcorporatebanking.com> domain name in bad faith with actual knowledge of Complainant’s rights in the TD and TD BANK marks and is using it in bad faith to redirect Internet users to Complainant’s official website as a means of attempting to profit from customer confusion between Respondent and Complainant. Respondent has set up mail exchange servers connected to the domain name. Emails emanating from the domain name could not reasonably be used for any good faith purpose, given the close similarity to Complainant’s trademark and its current deceptive use to redirect to Complainant’s official website. Instead, it is likely that the domain name may be actively used to facilitate fraudulent actively such as phishing, impersonating or passing off as Complainant. Respondent also registered the domain name using a WHOIS privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that it has rights in the TD and TD BANK marks through numerous registrations, including with the USPTO (e.g. TD - Reg. No. 1,649,009, registered on June 25, 1991, and TD BANK – Reg. No. 3,788,055, registered on May 11, 2010). The Panel finds Respondent’s <tdcorporatebanking.com> domain name to be confusingly similar to each of Complainant’s marks as it adds the generic terms “corporate” and “banking” to Complainant’s TD mark and the terms “corporate” and “ing” to Complainant’s TD BANK mark. These differences are insufficient to distinguish the domain name from the marks. The inconsequential gTLD “.com” may be disregarded.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <tdcorporatebanking.com> domain name was registered on August 15, 2020, many years after Complainant has shown that its TD and TD BANK marks had become very well-known. It resolves to Complainant’s “www.td.com” website. MX servers are configured.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <tdcorporatebanking.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s very well-known TD and TD BANK marks when Respondent registered the <tdcorporatebanking.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdcorporatebanking.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 1, 2023
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