DECISION

 

The Toronto-Dominion Bank v. Troy Rakes / Imex International

Claim Number: FA2309002061519

 

PARTIES

Complainant is The Toronto-Dominion Bank ("Complainant"), represented by Jason Hayden of CSC Digital Brand Services AB, Sweden. Respondent is Troy Rakes / Imex International ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <tdbusinessservices.com>, ('the Domain Name') registered with GoDaddy.com, LLC.

 

PANE

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 13, 2023; Forum received payment on September 13, 2023.

 

On September 13, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <tdbusinessservices.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 September 15, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 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@tdbusinessservices.com. Also on September 15, 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 October 6, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant's contentions can be summarized as follows:

 

The Complainant is the owner of trade mark registrations for TD in, inter alia, Canada and the USA for financial services with first use recorded as 1969. It owns TD.com.

 

The Domain Name registered in 2022 is confusingly similar to the Complainant's mark adding only the generic term 'business services' and the gTLD ".com" which does not prevent said confusing similarity.

 

Respondent is not affiliated with the Complainant in any way and the Complainant has not given the Respondent any permission to use the Complainant's mark.

 

Respondent is not commonly known by the Domain Name.

 

The Respondent is using the Domain Name to redirect users to a web site that resolves to a blank page which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.

 

Passive holding of a Domain Name containing a complainant's trade mark with a reputation constitutes bad faith use and registration under the Policy.

 

The Respondent failed to respond to a cease and desist letter from the Complainant and has used a privacy service also indications of bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of trade mark registrations for TD in, inter alia, Canada and the USA with first use recorded as 1969. It owns TD.com.

 

The Domain Name registered in 2022 has not been used.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

 

The Domain Name in this Complaint combines the Complainant's TD mark (registered in, inter alia, Canada and the USA for financial services with first use recorded as 1969), the generic term 'business services' and the gTLD ".com."

 

Adding a generic term to the Complainant's TD mark does not prevent confusing similarity between the Domain Name and the Complainant's mark which is still clearly recognizable in the Domain Name. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms particularly terms pertaining to complainant's business, do not adequately distinguish a disputed domain name from complainant's mark under Policy 4(a)(i).)

 

The gTLD ".com" does not serve to distinguish the Domain Name from the Complainant's mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.

 

Rights or Legitimate Interests

 

The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i). )

 

The Respondent has not answered the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

 

The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation is often bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000). The Panel is entitled to make adverse inferences from the fact that the Respondent has not answered this Complaint.

 

As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy. 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <tdbusinessservices.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: October 6, 2023