The Toronto-Dominion Bank v. Forku Angelbert
Claim Number: FA1909001862628
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is Forku Angelbert (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdgroupcanada.com>, registered with Click Registrar, LLC dba publicdomainregistry.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 18, 2019; the Forum received payment on September 18, 2019.
On September 20, 2019, Click Registrar, LLC dba publicdomainregistry.com confirmed by e-mail to the Forum that the <tdgroupcanada.com> domain name is registered with Click Registrar, LLC dba publicdomainregistry.com and that Respondent is the current registrant of the name. Click Registrar, LLC dba publicdomainregistry.com has verified that Respondent is bound by the Click Registrar, LLC dba publicdomainregistry.com 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 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 2019 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@tdgroupcanada.com. Also on September 20, 2019, 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 October 14, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant is the second largest bank in Canada by market capitalization and deposits, and the sixth largest bank in North America. Complainant has rights in the TD mark through its registration of the mark with the Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA396087, registered March. 3, 1992). Respondent’s <tdgroupcanada.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “group” and the geographical term “canada”, as well as the “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <tdgroupcanada.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent was merely having the disputed domain name redirect to Complainant’s website. Currently, the disputed domain name resolves to a blank page, showing Respondent has failed to make use of the disputed domain name.
Respondent registered and used the <tdgroupcanada.com> domain name in bad faith. Respondent was attempting to attract Internet users for commercial gain. Respondent currently fails to use the disputed domain name. Finally, Respondent had actual knowledge of Complainant’s mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the second largest bank in Canada by market capitalization and deposits, and the sixth largest bank in North America. Complainant has rights in the TD mark through its registration of the mark with the Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA396087, registered March. 3, 1992). Respondent’s <tdgroupcanada.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <tdgroupcanada.com> domain name on July, 29, 2019.
Respondents has no rights or legitimate interests in the <tdgroupcanada.com> domain name. Respondent was merely having the disputed domain name redirect to Complainant’s website. Currently, the disputed domain name resolves to a blank page, showing Respondent has failed to make use of the disputed domain name.
Respondent registered and used the <tdgroupcanada.com> domain name 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."
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 rights in the TD mark through registration of the mark with the CIPO. See The Toronto-Dominion Bank v. Reggie Rags, FA 1778853 (Forum Apr. 19, 2018) (“Registration of a mark with the CIPO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <tdgroupcanada.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “group” and the geographical term “canada”, as well as the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <tdgroupcanada.com> domain name. Complainant has not authorized Respondent to use Complainant’s TD mark. The WHOIS of record identifies the Registrant of the domain name as “Forku Angelbert.” Therefore, Respondent is not commonly known by the disputed domain name.
Respondent fails to use the <tdgroupcanada.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). Rather, Respondent was merely having the disputed domain name redirect to Complainant’s website. Use of disputed domain name that merely redirects an Internet user to Complainant’s main website may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii). See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”).
Furthermore, the <tdgroupcanada.com> domain name currently resolves to a blank page. Allowing a disputed domain name to resolve to a blank page is inactive holding and does not establish rights or legitimate as the domain name under Policy ¶ 4(a)(ii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”). Here, Complainant provided a screenshot of the <tdgroupcanada.com> domain name’s current resolving webpage, which shows that the webpage has been suspended and currently inactive.
Respondent’s <tdgroupcanada.com> domain name redirects Internet users to Complainant’s own website which shows bad faith registration and use according to Policy ¶ 4(a)(iii). See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“While this use of the disputed domain name may not seem to harm Complainant, Respondent’s appropriation of Complainant’s mark in the disputed domain name deprives Complainant of effective control over its mark.”).
Furthermore, Respondent’s failure to use the <tdgroupcanada.com> domain name is evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s TD mark at the time of registering the <tdgroupcanada.com> domain name which supports a finding of bad faith under Policy ¶ 4(a)(iii).
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 <tdgroupcanada.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 28, 2019
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