The Toronto-Dominion Bank v. marc charles / cimpinca6 / marco miliano / duville / joe bloe / none / batti picka / none
Claim Number: FA1409001579226
Complainant is The Toronto-Dominion Bank (“Complainant”), Canada. Respondent is marc charles / cimpinca6 / marco miliano / duville / joe bloe / none / batti picka / none (“Respondent”), Quebec, Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com>, registered with Bizcn.Com, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 11, 2014; the National Arbitration Forum received payment on September 16, 2014.
On September 12, 2014, Bizcn.Com, Inc. confirmed by e-mail to the National Arbitration Forum that the <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names is/are registered with Bizcn.Com, Inc. and that Respondent is the current registrant of the names. Bizcn.Com, Inc. has verified that Respondent is bound by the Bizcn.Com, 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 September 23, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 14, 2014 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@tdbankcanadatrust.net, postmaster@tdbankcanadatrustonlinehelp.com, postmaster@tdcanadatrustaccounts.com, postmaster@tdcanadatrustbanking.com, postmaster@tdcanadatrustgroup.com, postmaster@tdcanadatrustlive.com, postmaster@tdcanadatrustpage.com, postmaster@tdcanadatrustselfserve.com, postmaster@tdcanadatrustserver.com, postmaster@tdcanadatrustsite.com, postmaster@tdcanadatrustwireless.com, postmaster@tdcanadatrustzone.com, postmaster@tdcanadatrusthelp.com, postmaster@tdcanadatrustmobile.com, and postmaster@tdcanadatrustworld.com. Also on September 23, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 21, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
1. Complainant is the second largest bank in Canada by market capitalization and deposits, and the sixth largest bank in North America. Complainant’s family of TD trademarks are well known and recognized internationally. See Complainant’s Exhibit B, C, and D.
2. Complainant owns numerous registrations for its family of TD marks including registrations with the United States Patent and Trademark Office (“USPTO”) as well as with the Canadian Intellectual Property Office (“CIPO”). See Complainant’s Exhibit A.
a. TD BANK: USPTO (Reg. No. 3,788,055 registered May 11, 2010); CIPO (Reg. No. TMA549396 registered August 7, 2001)
b. TD: USPTO (Reg. No. 1,649,009 registered June 25, 1991); CIPO (Reg. No. TMA 644911 registered July 26, 2005)
c. CANADA TRUST: CIPO (Reg. No. TMA447666 registered September 15, 1995).
3. Respondent’s disputed domain names are confusingly similar to Complainant’s registered marks.
4. Respondent has no rights or legitimate interests in the disputed domain names.
a. Respondent is not commonly known by the disputed domain names in any way. Complainant has not granted Respondent permission or authorized Respondent to use Complainant’s marks in any way. Additionally, the WHOIS information for Respondent’s disputed domain names indicates that Respondent is known as an entity other than the trademark associated with Complainant.
b. Respondent is not using the disputed domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain names resolve to inactive websites displaying the message “oops! Google Chrome could not connect/find.” Respondent’s <tdcanadatrustserver.com> domain name presents the message “Access forbidden! New XAMPP security concept” or “Network Error.” See Complainant’s Exhibit F.
5. Respondent registered the disputed domain names in bad faith.
a. Respondent has a bad faith pattern of registering confusingly similar domain names, as evidenced by the number of domain names registered in the present complaint. Complainant further states that Respondent holds registrations for domain names that infringe on other parties’ trademarks. See Complainant’s Exhibit J.
b. Respondent registered the disputed domain names with the intent to attract Internet users to Respondent’s resolving websites, for the purpose of financially profiting. Respondent does this by causing a likelihood of confusion between Complainant’s official business and Respondent’s confusingly similar domain names.
c. Respondent’s disputed domain names currently resolve to inactive websites, which traditionally has signaled bad faith behavior.
d. Respondent previously used the <tdbankcanadatrust.net> and <tdcanadatrustserver.com> domain names in connection with fraudulent phishing activities. See Complainant’s Exhibit H.
e. Respondent had actual knowledge of Complainant’s registered marks at the time it registered the disputed domain names.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that prior to verification, each of the disputed domain names were registered using identical WHOIS details, “WUXI YILIAN LLC, No 1001 Anling Road, Xiamen Fujian 361008, CN.” Additionally, Complainant notes that all of the disputed domain names were registered between April 2014 and July 2014. Complainant states that the disputed domain names each follow a similar format that consists of Complainant’s trademark combined with a generic word that relates to Complainant’s business. The Panel notes that “Bizcn.com, Inc. is listed as the Registrar for all of the disputed domain names.
The Panel finds the domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
1. Respondent’s <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names are confusingly similar to Complainant’s TD mark.
2. Respondent does not have any rights or legitimate interests in the <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names.
3. Respondent registered or used the <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names 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(e), 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 (Nat. Arb. 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.”).
Complainant states that it is the second largest bank in Canada by market capitalization and deposits, and the sixth largest bank in North America. Complainant alleges that its family of TD trademarks are well known and recognized internationally. See Complainant’s Exhibit B, C, and D. Complainant asserts that it has rights in the TD, TD BANK, and CANADA TRUST marks based on Complainant’s numerous registrations including registrations with the USPTO as well as with the CIPO. See Complainant’s Exhibit A; see also TD BANK: USPTO (Reg. No. 3,788,055 registered May 11, 2010); CIPO (Reg. No. TMA549396 registered August 7, 2001); TD: USPTO (Reg. No. 1,649,009 registered June 25, 1991); CIPO (Reg. No. TMA 644911 registered July 26, 2005); and CANADA TRUST: CIPO (Reg. No. TMA447666 registered September 15, 1995). Panels have found that registration of a mark with the USPTO or CIPO sufficiently demonstrates that the owner of the registration has rights in the mark. See Seiko Epson Corp. v. Citizens News Network, FA 1389991 (Nat. Arb. Forum June 30, 2011) (finding that complainant had established Policy ¶ 4(a)(i) rights in its mark through its trademark registrations with the USPTO and CIPO). Given the findings of prior panels and Complainant’s demonstration of trademark registrations, the Panel finds that Complainant has rights in the TD family of marks pursuant to Policy ¶ 4(a)(i).
Complainant next asserts that Respondent’s <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com>
disputed domain names are confusingly similar to Complainant’s TD, TD BANK, and CANADA TRUST registered marks. The Panel notes that all of the disputed domain names feature the addition of a generic top-level domain (“gTLD”) such as “.net” or “.com” and remove the spaces between the words. These variations have traditionally been found to irrelevant when determining the confusing similarity between a registered mark and a disputed domain name. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)).
Complainant further asserts that Respondent’s disputed domain names combine two or more of Complainant’s registered marks and add a word relating to Complainant’s business. For example the Panel sees that Respondent’s <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names all feature two of complainant’s marks with the addition of a descriptive term such as “online help,” “accounts,” “banking,” “group,” “live,’ “page,” “self serve,” “server,” “site,” “wireless,” “zone,” “help,” “mobile,” or “world.” The previous panel in Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) concluded that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business. Additionally, the panel in Fitness Anywhere, Inc. v. Mode Athletics, FA 1320667 (Nat. Arb. Forum May 20, 2010) stated, “Respondent’s <trxsuspensiontraining.com> disputed domain name is confusingly similar to Complainant’s TRX and SUSPENSION TRAINING marks because it combines Complainant’s marks and merely adds the generic top-level domain .com.” The present Panel finds similarly and conclude that Respondent’s combination of Complainant’s marks and the addition of a descriptive word does not differentiate a dispute domain name from a registered mark.
Likewise, Complainant argues that Respondent’s <tdbankcanadatrust.net> domain name merely combines Complainant’s TD BANK mark with Complainant’s CANADA TRUST mark. As discussed above, the Panel concludes that like the remainder of Respondent’s disputed domain names, Respondent’s <tdbankcanadatrust.net> domain name also confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i). See Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where respondent combined the complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii). Complainant alleges that Respondent is not commonly known by the disputed domain names in any way. Complainant contends that it has not granted Respondent permission or authorized Respondent to use Complainant’s marks in any way. Additionally, the Panel notes that the WHOIS information for Respondent’s disputed domain names indicates that Respondent is known as an entity other than the trademark associated with Complainant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Next, Complainant argues that Respondent is not using almost any of the disputed domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names. Complainant points out that Respondent’s disputed domain names resolve to inactive websites displaying the message “oops! Google Chrome could not connect/find.” Additionally, Complainant claims that Respondent’s <tdcanadatrustserver.com> domain name in particular presents the message “Access forbidden! New XAMPP security concept” or “Network Error.” See Complainant’s Exhibit F. Panels have held that failure to associate content with a domain name makes clear that the respondent does not have rights or legitimate interests. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).”). Therefore, the Panel finds that Respondent’s non-use of the disputed domain names is neither a Policy ¶¶ 4(c)(i) or 4(c)(iii) bona fide offering of goods or services nor a legitimate noncommercial or fair use.
Complainant also claims that Respondent’s <tdcanadatrustmobile.com> domain name resolves to a website displaying links to “TD Canada Trust,” “TD Canada Trust Jobs,” and “About TD Canada Trust.” Complainant notes this is the only disputed domain name that has an active use. Complainant states that Respondent’s use is aimed at confusing Internet users in order to collect pay-per-click revenue. See Complainant’s Exhibit F. Prior panels have concluded that this type of use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). The Panel finds accordingly here.
Complainant goes on to argue that the <tdbankcanadatrust.net> and <tdcanadatrustserver.com> domain names were instruments of a phishing scam whereby the domain names were used to create e-mail accounts that targeted Complainant’s customers because Respondent posed as Complainant’s employees and requested personal information of these users. See Compl., at Attached Ex. H. This Panel concludes that phishing schemes are evidence that no Policy ¶ 4(a)(ii) rights lay with Respondent as regarding these two domain names. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant alleges that Respondent registered the disputed domain names in bad faith under Policy ¶ 4(b)(ii). Complainant explains, Respondent has a bad faith pattern of registering confusingly similar domain names, as evidenced by the number of domain names registered in the present Complaint. Additionally, Complainant asserts that Respondent’s registration and use of the disputed domain names were meant to prevent Complainant from registering the domain names and promoting its services. Complainant further states that Respondent holds registrations for domain names that infringe on other parties’ trademarks. See Complainant’s Exhibit J. The Panel concludes that Respondent’s registration of fifteen domain names within a relatively short period of time indicates bad faith use and registration under Policy ¶ 4(b)(ii). See Caterpillar Inc. v. Miyar, FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that registering multiple domain names in a short time frame indicates an intention to prevent the mark holder from using its mark and provides evidence of a pattern of conduct).
Complainant further asserts that Respondent registered the <tdcanadatrustmobile.com> domain name with the intent to attract Internet users to Respondent’s resolving websites, for the purpose of financially profiting. Complainant states that Respondent does this by causing a likelihood of confusion between Complainant’s official business and Respondent’s confusingly similar domain names. The Panel notes Complainant’s Exhibit F to see that Respondent’s <tdcanadatrustmobile.com> domain name resolves to a website displaying links to “TD Canada Trust,” “TD Canada Trust Jobs,” and “About TD Canada Trust.” Complainant states that Respondent uses this resolving website to collect pay-per-click revenue when Internet users mistakenly visit Respondent’s resolving website, thinking that it belongs to Complainant. Prior panels have found that this type of use indicates bad faith use and registration under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). The Panel concludes that Respondent’s <tdcanadatrustmobile.com> domain name was registered and is being used in bad faith under Policy ¶ 4(b)(iv).
Complainant also claims that the remainder of Respondent’s disputed domain names currently resolve to inactive websites, which traditionally has signaled bad faith behavior. The previously panel in Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) held that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith. As the Panel sees in Complainant’s Exhibit F, Respondent’s <tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, and <tdcanadatrustworld.com> domain names are inactive, thereby indicating bad faith use and registration by Respondent under Policy ¶ 4(a)(iii).
Complainant contends that Respondent’s <tdbankcanadatrust.net> and <tdcanadatrustserver.com> domain names were previously used in connection with fraudulent phishing activities. Respondent’s <tdbankcanadatrust.net> domain name was previously used to contact complainant’s consumers via text message and notified that their accounts were suspended and needed to be unlocked by clicking on a URL that directed to Respondent’s website. See Complainant’s Exhibit H. Additionally, Complainant asserts that Respondent’s <tdcanadatrustserver.com> domain name was also used in a phishing scheme. Prior panels have concluded that similar schemes indicated bad faith use and registration of a disputed domain name. See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (concluding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use). The Panel agrees and concludes that Respondent’s prior involvement regarding phishing schemes is a strong indication of bad faith use and registration under Policy ¶ 4(a)(iii).
Lastly, Complainant contends that Respondent had actual and/or constructive knowledge of Complainant’s rights in Complainant’s registered marks at the time Respondent registered the disputed domain names. Complainant states that its marks are well known and recognized internationally, and complainant’s rights in the marks predate Respondent’s registrations of the disputed domain names. Panels have come to a consensus that constructive knowledge alone will not justify a finding of bad faith. See Sears Brands, LLC v. Airhart, FA 1350469 (Nat. Arb. Forum Dec. 2, 2010) (stating that constructive notice generally will not suffice for a finding of bad faith). The Panel finds that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights, and the Panel finds bad faith under Policy ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat'l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (finding that there are reasonable grounds to infer that Respondent had actual notice of Complainant's rights in the mark, and therefore registered the disputed domain name in bad faith, since Complainant's magazine covers an industry towards which Respondent's services are marketed).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the<tdbankcanadatrust.net>, <tdbankcanadatrustonlinehelp.com>, <tdcanadatrustaccounts.com>, <tdcanadatrustbanking.com>, <tdcanadatrustgroup.com>, <tdcanadatrustlive.com>, <tdcanadatrustpage.com>, <tdcanadatrustselfserve.com>, <tdcanadatrustserver.com>, <tdcanadatrustsite.com>, <tdcanadatrustwireless.com>, <tdcanadatrustzone.com>, <tdcanadatrusthelp.com>, <tdcanadatrustmobile.com>, and <tdcanadatrustworld.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 3, 2014
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