The Toronto-Dominion Bank v. Zhichao Yang
Claim Number: FA1605001672938
Complainant is The Toronto-Dominion Bank ("Complainant"), Canada. Respondent is Zhichao Yang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tdcardserices.com> and <tdccardservices.com>, registered with NameSilo, LLC; and <tdcardservies.com>, <tdcardsevices.com>, <tdcardsservices.com>, <tdinsurace.com>, <tdinsureance.com>, and <tdinsurnace.com>, registered with GoDaddy.com, LLC.
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 May 2, 2016; the Forum received payment on May 2, 2016.
On May 3, 2016, NameSilo, LLC confirmed by email to the Forum that the <tdcardserices.com> and <tdccardservices.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 6, 2016, GoDaddy.com, LLC confirmed by email to the Forum that the <tdcardservies.com>, <tdcardsevices.com>, <tdcardsservices.com>, <tdinsurace.com>, <tdinsureance.com>, and <tdinsurnace.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 the Policy.
On May 9, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2016 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@tdcardserices.com, postmaster@tdccardservices.com, postmaster@tdcardservies.com, postmaster@tdcardsevices.com, postmaster@tdcardsservices.com, postmaster@tdinsurace.com, postmaster@tdinsureance.com, and postmaster@tdinsurnace.com. Also on May 9, 2016, 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 June 3, 2016, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is the second largest bank in Canada, and the sixth largest in North America. Complainant was formed by a merger of two older banks in 1955. Complainant has over 85,000 employees and over 22 million clients worldwide. Complainant has used TD and related marks for its goods and services since 1969. Complainant holds numerous trademark registrations in the United States, Canada, China, and elsewhere for TD standing alone and other TD-related marks, including a registration in China for TD INSURANCE. Complainant claims that its brand is well recognized globally, citing various surveys that rank it among the world's most valuable brands.
Six of the disputed domain names, <tdcardservies.com>, <tdcardsevices.com>, <tdcardsservices.com>, <tdinsurace.com>, <tdinsureance.com>, and <tdinsurnace.com>, were registered by Respondent in 2012 or 2013. The other two disputed domain names, <tdcardserices.com> and <tdccardservices.com>, were registered through a privacy service in 2015, concealing the registrant's identity. Complainant states that Respondent is not sponsored by or affiliated with Complainant, has not been given permission to use Complainant's marks, and is not commonly known by the disputed domain name. Complainant states further that the disputed domain names redirect Internet users to websites featuring links to third-party websites, some of which compete directly with Complainant, and that Respondent presumably receives pay-per-click fees from the linked websites.
On these grounds Complainant contends that the disputed domain names are confusingly similar to marks in which Complainant has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain names; and that the domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of 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 names; and that the disputed domain names were registered and have been 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
All of the disputed domain names incorporate Complainant's TD mark, adding only a misspelled generic term describing services offered by Complainant ("card services" or "insurance") and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Toronto-Dominion Bank v. Ryan G Foo / PPA Media Services / Jinesh Shah / Whois Privacy Corp. / Domain Administrator / Fundacion Private Whois / Domain Admin / Whois Privacy Corp., FA 1576648 (Nat. Arb. Forum Jan. 12, 2015) (finding <tdbankcardservices.com> confusingly similar to TD BANK); Toronto-Dominion Bank v. M Morgan / MM, FA 1554871 (Nat. Arb. Forum May 19, 2014) (finding <tdinsuance.com> confusingly similar to TD and TD INSURANCE). The Panel finds that each of the disputed domain names is 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 Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's well-known mark, and apparently their sole use has been in connection with websites comprised of sponsored advertising links, including links to competitors of Complainant. See, e.g., Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, FA 1670787 (Forum May 24, 2016) (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, 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 names.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Respondent's use of domain names incorporating Complainant's mark to profit from confusion by displaying pay-per-click links is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy, and continues a pattern of bad faith registrations under paragraph 4(b)(ii). See Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, supra; Combined Insurance Co. of America v. Zhichao Yang, FA 1667637 (Forum May 12, 2016); Cerner Corp. v. yangzhichao, FA 1653943 (Forum Feb. 16, 2016); National Grid Electricity Transmission PLC & Ngrid Intellectual Property Ltd. v. Zhichao Yang, D2015-2339 (WIPO Feb. 12, 2016); Vanguard Trademark Holdings USA LLC v. Zhichao Yang, FA 1654621 (Forum Feb. 10, 2016); Hartford Fire Insurance Co. v. yangzhichao / Information Privacy Protection Services Ltd., c/o Domain Admin, D2015-2193 (WIPO Jan. 25, 2016); Chancellor, Masters & Scholars of University of Oxford, trading as Oxford University Press v. Zhichao Yang, D2015-1884 (WIPO Jan. 11, 2016); Nextten Stauer, LLC v. Zhichao Yang, D2015-1990 (WIPO Jan. 4, 2016); AlliedBarton Security Services LLC v. Domain Administrator / Zhichao Yang, D2015-1991 (WIPO Dec. 23, 2015); Capital One Financial Corp. v. Zhichao Yang, FA 1647371 (Forum Dec. 21, 2015); Hartford Fire Insurance Co. v. Zhichao Yang, D2015-1551 (WIPO Oct. 22, 2015); UnitedHealth Group Inc. v. Zhichao Yang, FA 1635392 (Forum Oct. 22, 2015); Pentair, Inc. v. yangzhichao/Domain Admin, Information Privacy Protection Services Ltd., D2015-1120 (WIPO Sept. 21, 2015); Nationwide Mutual Insurance Co. v. Whois Agent, Whois Privacy Protection Service, Inc./ Zhichao Yang, D2015-1129 (WIPO Aug. 31, 2015); Independence Blue Cross, LLC v. yangzhichao, FA 1625854 (Forum July 31, 2015); Kabbage, Inc. v. Zhichao Yang, FA 1624159 (Forum July 28, 2015); Allianz SE v. Zhichao Yang, D2015-0638 (WIPO June 8, 2015); Kabbage, Inc. v. Zhichao Yang, FA 1617298 (Forum June 5, 2015); BHCosmetics, Inc. v. Zhichao Yang, FA1604344 (Nat. Arb. Forum Mar. 15, 2015); Capital One Financial Corp. v. Zhichao Yang, FA 1602625 (Nat. Arb. Forum Mar. 12, 2015); Capital One Financial Corp. v. Zhichao Yang / Zhichao Yang, FA 1583406 (Nat. Arb. Forum Nov. 17, 2014); Capital One Financial Corp. v. Zhichao Yang, FA 1583407 (Nat. Arb. Forum Nov. 10, 2014); Capital One Financial Corp. v. Zhichao Yang, FA 1582809 (Nat. Arb. Forum Nov. 10, 2014); Fair Isaac Corp. v. Zhichao Yang, FA 1582275 (Nat. Arb. Forum Oct. 28, 2014); Capital One Financial Corp. v. Zhichao Yang, FA 1579520 (Nat. Arb. Forum Oct. 28, 2014); John Hancock Life Insurance Co. (U.S.A.) v. Zhichao Yang/Xiamen eName Network Co., Ltd.; Zhichao Yang/Whois Agent/Whois Privacy Protection Service, Inc.; yangzhichao/Whois Agent/Domain Whois Protection Service, D2014-1178 (WIPO Sept. 26, 2014); FIL Ltd. v. Yangzhichao/Domain Whois Protection Service, Whois Agent, D2014-1006 (WIPO July 31, 2014); One Technologies, L.P. v. Zhichao Yang, FA 1554290 (Nat. Arb. Forum June 10, 2014); Homer TLC, Inc. v. Zhichao Yang, FA 1556058 (Nat. Arb. Forum May 29, 2014); Société Air France v. Zhichao Yang, D2014-0309 (WIPO Apr. 22, 2014); Toronto-Dominion Bank v. Zhichao Yang, FA 1543156 (Nat. Arb. Forum Apr. 25, 2014); TD Ameritrade IP Co. v. Zhichao Yang, FA 1541053 (Nat. Arb. Forum Mar. 20, 2014); Capital One Financial Corp. v. Zhichao Yang, FA 1544054 (Nat. Arb. Forum Mar. 18, 2014); Virgin Enterprises Ltd. v. Zhichao Yang, D2013-2112 (WIPO Jan. 29, 2014); Ticket Software LLC v. Zhichao Yang, FA 1530835 (Nat. Arb. Forum Jan. 3, 2014); OS Asset, Inc. v. Yan / Yanli Li; Zhichao Yang, FA 1529354 (Nat. Arb. Forum Dec. 30, 2013); Net-A-Porter Group Ltd. v. Zhichao Yang, D2013-1748 (WIPO Nov. 28, 2013); Compagnie Générale des Etablissements Michelin (Michelin) v. Zhichao Yang, D2013-1418 (WIPO Sept. 17, 2013); Comerica Inc. v. Zhichao Yang / Whois Privacy Protection Service, Inc., Whois Agent, D2013-1184 (WIPO Sept. 11, 2013); MoneyGram International, Inc. v. Zhichao Yang, FA 1511887 (Forum Sept. 11, 2013); OneWest Bank, FSB v. Zhichao Yang, FA 1509978 (Nat. Arb. Forum Aug. 28, 2013); Homer TLC, Inc. v Zhichao Yang, FA 1508957 (Nat. Arb. Forum Aug. 24, 2013); AlliedBarton Security Services LLC v. Zhichao Yang, D2013-0839 (WIPO July 19, 2013); Time Warner Inc. v. Zhichao Yang, FA 1500968 (Nat. Arb. Forum June 28, 2013); Bloomberg Finance L.P. v. Zhichao Yang, FA 1496503 (Nat. Arb. Forum June 11, 2013); Blogmusik SAS v. Yang Zhichao, DCO2013-0008 (May 29, 2013); Dollar Shave Club, Inc. v. Zhichao Yang, FA 1491288 (Nat. Arb. Forum Apr. 26, 2013); Discover Financial Services v. Zhichao Yang, FA 1490736 (Nat. Arb. Forum Apr. 24, 2013); KCD IP, LLC v. Zhichao Yang, FA 1488265 (Nat. Arb. Forum Apr. 16, 2013); Brooks Brothers Group, Inc. v. Zhichao Yang, FA 1488737 (Nat. Arb. Forum Apr. 10, 2013); Sears Brands, LLC v Zhichao Yang, FA 1488276 (Nat. Arb. Forum Apr. 8, 2013); OneWest Bank, FSB v. Zhichao Yang, FA 1481432 (Nat. Arb. Forum Mar. 4, 2013); Wells Fargo & Co. v. Zhichao Yang, FA 1477756 (Nat. Arb. Forum Feb. 7, 2013); Capital One Financial Corp. v. Zhichao Yang, FA 1473336 (Nat. Arb. Forum Jan. 9, 2013); State Farm Mutual Automobile Insurance Co. v. Zhichao Yang, FA 1461251 (Nat. Arb. Forum Oct. 16, 2012); Redcats USA v. Zhichao Yang, FA 1462454 (Nat. Arb. Forum Oct. 10, 2012); Nationstar Mortgage LLC v. Zhichao Yang, FA 1450754 (Nat. Arb. Forum Oct. 10, 2012).
The Panel finds that the disputed domain names were registered and are being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdcardserices.com>, <tdccardservices.com>, <tdcardservies.com>, <tdcardsevices.com>, <tdcardsservices.com>, <tdinsurace.com>, <tdinsureance.com>, and <tdinsurnace.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 3, 2016
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