The Toronto-Dominion Bank v. Marie Joe / Ceo / semy kh
Claim Number: FA1707001739055
Complainant is The Toronto-Dominion Bank (“Complainant”), Canada. Respondent is Marie Joe / Ceo / semy kh (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com>, registered with Eranet International Limited.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 10, 2017; the Forum received payment on July 10, 2017.
On July 14, 2017, Eranet International Limited confirmed by e-mail to the Forum that the <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> domain names are registered with Eranet International Limited and that Respondent is the current registrant of the names. Eranet International Limited has verified that Respondent is bound by the Eranet International Limited 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 July 18, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 2017 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@easyweb-td-canada-trust.com, postmaster@easyweb-td-can-online.com, postmaster@easywebtd-onlinesecure.com, postmaster@easy-web-td-can-web-banking.com, and postmaster@easy-web-can-td-web-banking.com. Also on July 18, 2017, 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 August 9, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> domain names are confusingly similar to Complainant’s TD and EASYWEB marks.
2. Respondent does not have any rights or legitimate interests in the <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> domain names.
3. Respondent registered and uses the <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant offers banking services and has registered the TD mark with the United States Patent and Trademark Office (Reg. No. 3,041,792, registered Jan. 10, 2006) and the CANADA TRUST mark with the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA447666, registered Sept. 15, 1995). Complainant also holds a CIPO registration for the EASYWEB mark (Reg. No. TMA493469, registered Apr. 22, 1998) and the TD BANK mark with both the USPTO (Reg. No. 3,788,055, registered May 11, 2010) and CIPO (Reg. No. TMA549396, registered Aug. 7, 2001).
Respondent registered the disputed domain names as follows:
<easyweb-td-canada-trust.com>................................................... February 8, 2017;
<easyweb-td-can-online.com>............................................................... April 3, 2017;
<easywebtd-onlinesecure.com>...................................................... March 10, 2017;
<easy-web-td-can-web-banking.com>........................................ April 4, 2017; and
<easy-web-can-td-web-banking.com>.............................................. April 14, 2017.
Respondent is not making an active use of the <easy-web-can-td-web-banking.com> domain name, and uses the other disputed domain names to phish for Internet users’ personal information.
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.”).
Preliminary Issue: Multiple Respondents
Complainant has alleged that the entities controlling the disputed domain names are 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 makes the following contentions:
1. Eranet International Limited serves as the Registrar for all of the Disputed Domain Names.
2. Each of the disputed domain names has been created and registered using a similar composition and format that consists of the following: Complainant’s trademarked term + hyphen + generic word(s) relating to Complainant’s business.
3. The current public WHOIS information is falsified or incomplete as they do not include valid provinces in Canada and reference an address that does not appear to exist.
4. A Reverse IP Lookup for the disputed domain name <easyweb-td-canada-trust.com> shows that it is registered by semy kh, and the rest of the disputed domain names are registered by Marie Joe / Ceo at the same IP address.
5. The disputed domain names <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com> and <easy-web-can-td-web-banking.com> redirect users to identical websites.
The Panel finds that Complainant has presented sufficient evidence to demonstrate that the disputed domain names are jointly controlled. The Panel will refer to the listed registrants of the disputed domain names collectively as “Respondent.”
The Panel finds that Complainant has rights in the TD, CANADA TRUST, EASYWEB, and TD BANK marks under Policy ¶ 4(a)(i) through its registration of the marks with the USPTO and/or the CIPO. See Homer TLC, Inc. v. Artem Ponomarev, FA 1623825 (Forum July 20, 2015) (finding Policy ¶ 4(a)(i) rights “without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or operates (here Russia).”).
Respondent’s <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> each incorporate one or more of Complainant’s marks, and simply add the generic terms “online,” “can,” “secure,” and “web banking,” and the gTLD “.com.” These changes do not distinguish the disputed domain names from Complainant’s marks. See Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015) (“The combination of a complainant’s mark does not allow a respondent to avoid a finding of confusing similarity under Policy ¶4(a)(i).”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 (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 (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 asserts that Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use its marks. Where a respondent fails to submit a response, the Panel may look to the WHOIS information to determine whether Respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information on record lists “Marie Joe / Ceo / semy kh” as registrants of the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names.
Complainant further argues that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial fair use. Complainant demonstrates that Respondent is using four of the five domain names (<easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com> and <easy-web-td-can-web-banking.com>) to trick Internet users into divulging personal information by imitating Complainant’s website and soliciting sensitive information such as username, password, and credit card numbers. Phishing schemes and passing off both indicate a lack of rights and legitimate interests. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Accordingly, the Panel finds that Respondent has made neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com> and <easy-web-td-can-web-banking.com> domain names.
Complainant also shows that the <easy-web-can-td-web-banking.com> domain name is used by Respondent to redirect Internet users to a website that lacks content (displaying “Forbidden”). The Panel finds that Respondent’s failure to use the <easy-web-can-td-web-banking.com> domain name indicates a lack of rights and legitimate interests. See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding respondent’s non-use of a domain name demonstrates a lack of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent uses four of the five disputed domain names for phishing and passing itself off as Complainant. Phishing is defined as a practice that is intended to defraud consumers into revealing personal and proprietary information. Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004). Passing off is defined as a general attempt to impersonate a complainant, likely as a scheme to defraud consumers. See Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011). Respondent is doing both and also demonstrating that he has actual knowledge of Complainant by directly copying Complainant’s website at <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com> and <easy-web-td-can-web-banking.com>. Thus, the Panel finds several instances of Policy ¶ 4(a)(iii) bad faith.
Inactive holding may also serve as an indication that a respondent registered and used a domain name in bad faith under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith). The Panel therefore finds that the <easy-web-can-td-web-banking.com> domain name resolves to an inactively held webpage, also bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <easyweb-td-canada-trust.com>, <easyweb-td-can-online.com>, <easywebtd-onlinesecure.com>, <easy-web-td-can-web-banking.com>, and <easy-web-can-td-web-banking.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 10, 2017
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