The Toronto-Dominion Bank v. mike pierre
Claim Number: FA1912001874597
Complainant is The Toronto-Dominion Bank ("Complainant"), represented by CSC Digital Brand Services Group AB, Sweden. Respondent is mike pierre ("Respondent"), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdcanada-trust-verification.com>, registered with Hosting Concepts B.V. d/b/a Openprovider.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 10, 2019; the Forum received payment on December 10, 2019.
On December 13, 2019, Hosting Concepts B.V. d/b/a Openprovider confirmed by email to the Forum that the <tdcanada-trust-verification.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider 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 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@tdcanada-trust-verification.com. Also on December 16, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 January 9, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 and the sixth largest in North America. Complainant has over 86,000 employees and over 25 million clients worldwide. Complainant has used TD, CANADA TRUST, and related marks for its goods and services for many years, and owns longstanding Canadian trademark registrations for both of these marks. Complainant claims that its TD brand is well recognized globally, citing various surveys that rank it among the world's most valuable brands.
Respondent registered the disputed domain name in October 2019 via a privacy registration service; the privacy shield was removed upon the commencement of this proceeding. The domain name does not resolve to a website. Complainant states that it has not given Respondent permission to use its marks; that Respondent is not sponsored by or affiliated with Complainant; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <tdcanada-trust-verification.com> is confusingly similar to its TD and CANADA TRUST marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was 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."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <tdcanada-trust-verification.com> incorporates Complainant's registered TD and CANADA TRUST trademarks, substituting a hyphen for the space in the latter and adding an additional hyphen, the generic term "verification," and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and
Complainant's marks. See, e.g., The Toronto-Dominion Bank v. DAVID BRAXTON / D Braxton Enterprise, FA 1734245 (Forum June 28, 2017) (finding <tdcanada-trustgroup.com> confusingly similar to TD and CANADA TRUST); Confédération Nationale du Crédit Mutuel v. Adam Sandling, D2016-1545 (WIPO Sept. 9, 2016) (finding <creditmutuel-verification.com> confusingly similar to CREDIT MUTUEL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and Respondent does not appear to have made any active use of the domain name. Failure to make active use of a domain name is indicative of a lack of rights or legitimate interests. See, e.g., The Toronto-Dominion Bank v. DAVID BRAXTON / D Braxton Enterprise, supra.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy lists various circumstances that, if found, may demonstrate that a domain name was registered and is being used in bad faith. These circumstances, however, are not exhaustive; the totality of the circumstances must be considered in the assessment of bad faith. Factors relevant to whether an inference of bad faith is appropriate include:
(i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 3.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/. See also The Toronto-Dominion Bank v. DAVID BRAXTON / D Braxton Enterprise, supra (quoting the above factors).
In this case, all four factors lean strongly against Respondent. The Panel accordingly finds that the disputed domain name was registered and is being used in bad faith for purposes of paragraph 4(a)(iii) of the Policy.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdcanada-trust-verification.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 13, 2020
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