The Toronto-Dominion Bank v. Acamcas Emmanuel
Claim Number: FA2112001977986
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by Jason Hayden of CSC Digital Brand Services Group AB, Sweden. Respondent is Acamcas Emmanuel (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdbkgroup.com>, (‘the Domain Name’) registered with OwnRegistrar, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2021; the Forum received payment on December 22, 2021.
On December 22, 2021, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <tdbkgroup.com> Domain Name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 December 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 12, 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@tdbkgroup.com. Also on December 23, 2021, 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 January 17, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of, inter alia, the marks TD, TD BANK and TD BANK GROUP registered in the USA and Canada for financial services with TD first used in 1969. It owns tdbank.com.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s marks and combining elements of all three marks and adding the gTLD .com therein does not prevent such confusing similarity. More specifically, the letters “bk” in the Disputed Domain Name clearly refers to the term “bank” as the Complainant itself even owns several domain names with the same abbreviation, such as, <tdbk-online.com>, <tdbk.info> and <tdbkonline.com>.
The Respondent does not have rights or a legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used to distribute malware or phish neither of which are a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Respondent did not reply to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the marks TD, TD BANK and TD BANK GROUP registered in the USA and Canada for financial services with TD first used in 1969. It owns tdbank.com.
The Domain Name registered in 2021 has been flagged as a site phishing or distributing malware.
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 Domain Name consists of a misspelling of the Complainant’s TD BANK GROUP mark (registered, inter alia, in the USA and Canada for financial services with first use of TD recorded as 1969) and the gTLD “.com”. The Panel agrees that misspellings such as omission of a letter or letters or an abbreviation suck as ‘bk’ for the ‘bank’ does not distinguish the Domain Name from the Complainant's TD BANK GROUP trade mark pursuant to the Policy. See Twitch Interactive Inc. v. Zhang qin, FA 1626511 (Forum Aug 4, 2015). See also Black Hills Ammunition, Inc. v. ICS INC, FA 1541572 (Forum Mar. 4, 2014) (finding that the <black-hillsammo.com> domain name is confusingly similar to the BLACK HILLS AMMUNITION mark under Policy ¶ 4(a)(i)).
The gTLD “.com” does not serve to distinguish the Domain Name from the TD BANK GROUP 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 holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, 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 is some evidence that the site may have been used for malware or phishing which cannot be a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”) Passing off in furtherance of a phishing scheme is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Google Inc. v. Prisma Singh/Pandaje Technical Services Pvt Ltd, FA 1660771 (Forum March 17, 2016).
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 Respondent has not answered this Complaint or explained why it should be allowed to register a domain name confusingly similar to the Complainant’s mark which has a reputation for financial services.
Phishing or use for malware are both bad faith per se under the Policy. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). See also Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”).
As such, the Panelist believes 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 under paras 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdbkgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 18, 2022
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