The Toronto-Dominion Bank v. Karl Schnurch / EdenMedia
Claim Number: FA2306002048071
Complainant is The Toronto-Dominion Bank (“Complainant”), represented by CSC Digital Brand Services Group AB, Sweden. Respondent is Karl Schnurch / EdenMedia (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tdetreasury.com>, registered with Key-Systems GmbH.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 8, 2023. Forum received payment on June 8, 2023.
On June 9, 2023, Key-Systems GmbH confirmed by e-mail to Forum that the <tdetreasury.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 June 12, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 2023 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@tdetreasury.com. Also on June 12, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On July 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Created in 1955, Complainant, The Toronto-Dominion Bank, is the second largest bank in Canada and the sixth largest in North America. It is commonly known as TD and operates as TD Bank Group. Through <etreasury.tdbank.com> Complainant provides online access via its “TD eTreasury Login” portal to services that help its customers’ payment and transaction processes.
Complainant has rights in the TD mark through registrations, including with the United States Patent and Trademark Office (“USPTO). The <tdetreasury.com> domain name is confusingly similar to Complainant’s TD trademark.
Respondent has no rights or legitimate interests in the domain name. Respondent is not sponsored by or affiliated with Complainant in any way.
Complainant has not given Respondent permission to use Complainant’s trademark in any manner and Respondent is not commonly known by the domain name.
The domain name was registered and is being used in bad faith. It is difficult to ascertain when Respondent first gained possession of the domain name as the registration throughout the years has been masked through the use of privacy Whois services. The original registration of the domain name was on June 15, 2015. Regardless of when Respondent became the registrant, that date falls after Complainant’s first use in commerce of its TD trademark in 1969 and after Complainant’s registration of the domain names <tdbank.com> on April 14, 1995 and <td.com> on April 15, 1998.
Respondent is using the domain name in bad faith to resolve to a website featuring third-party pay-per-click links for online banking. One directly references Complainant and its business. Other indicia of Respondent’s bad faith are that the domain name is being offered for sale in an amount exceeding Respondent’s out-of-pocket expenses in registering it and that Respondent employed a privacy service to hide its identity. Other cases show Respondent to have engaged in a pattern of cybersquatting/typosquatting.
B. Respondent
Respondent failed to submit a formal Response. On June 15, 2023 Respondent communicated informally by email to Forum. Because that communication failed to comply with Rule 5(c), in particular in failing to provide the certification required by Rule 5(c)(viii), the Panel has not taken it into account, save insofar as Respondent says the domain name was acquired on February 23, 2016.
Complainant has established all the elements entitling it to relief.
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 formal 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”).
Complainant has shown that it has rights in the TD mark through several registrations, including with the USPTO (e.g., Reg. 1649009 registered on June 25, 1991). The Panel finds Respondent’s <tdetreasury.com> domain name to be confusingly similar to Complainant’s mark, only differing by the addition of the letter “e” and the dictionary term “treasury”, which do nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <tdetreasury.com> domain name was acquired by Respondent on February 23, 2016, many years after Complainant registered its TD mark. It resolves to a website featuring third-party pay-per-click links for online banking.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <tdetreasury.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no formal attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
The very nature of the <tdetreasury.com> domain name evokes Complainant’s TD trademark and its “TD eTreasury” login portal.
In the absence of a compliant formal response, the Panel finds that, when Respondent acquired the <tdetreasury.com> domain name in 2016 from the original registrant, Respondent is more likely than not to have been aware of Complainant and its well-known TD trademark and that Respondent did so in order to capitalize on the goodwill of Complainant’s mark by arranging for the website to promote pay-per-click links for online banking. Such use constitutes evidence of both bad faith registration and use pursuant to Paragraph 4(b)(iv) of the Policy whether or not those links might have been automatically generated, for example by a Registrar. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), paragraph 3.5:
“Particularly with respect to “automatically” generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests).”
Accordingly, the Panel finds that Respondent registered and is using the <tdetreasury.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tdetreasury.com> domain name be TRANSFERRED from Respondent to Complainant.
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Dated: July 14, 2023.
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