7-Eleven, Inc. v. Johna Borris / XM / XM Capital / daq Bet / daq Bet Golden Pay / Barry Boisvert
Claim Number: FA1907001854602
Complainant is 7-Eleven, Inc. (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Johna Borris / XM / XM Capital / daq Bet / daq Bet Golden Pay / Barry Boisvert (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com>, registered with Godaddy.Com, Llc; Hostinger, Uab, Godaddy.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.
Kenneth L. Port as Panelist.
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.”
The Panel finds that there is one Respondent in this matter and that Respondent is acting under several aliases. As such, the Panel finds there is one entity and this entity is in charge of this case.
Complainant submitted a Complaint to the Forum electronically on July 29, 2019; the Forum received payment on July 29, 2019.
On July 30, 2019; July 31, 2019; August 06, 2019, Godaddy.Com, Llc; Hostinger, Uab, Godaddy.Com, Inc. confirmed by e-mail to the Forum that the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names are registered with Godaddy.Com, Llc; Hostinger, Uab, Godaddy.Com, Inc. and that Respondent is the current registrant of the names. Godaddy.Com, Llc; Hostinger, Uab, Godaddy.Com, Inc. has verified that Respondent is bound by the Godaddy.Com, Llc; Hostinger, Uab, Godaddy.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 August 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 2019 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@7elevencoins.com, postmaster@7elevencoins.tech, postmaster@7elevencoins.site, postmaster@7elevencoins.co, postmaster@plus7eleven.com. Also on August 9, 2019, 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 September 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port a 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 operates in the convenience store industry, as well as the cryptocurrency industry. Complainant has rights in the 7-ELEVEN mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 896,654, registered Aug. 11, 1970). See Amend. Compl. Ex. K. Respondent’s <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names are identical or confusingly similar to Complainant’s 7-ELEVEN mark because they each wholly incorporate Complainant’s 7-ELEVEN mark, while removing the hyphen, and merely add the generic or descriptive term “coins” or “plus” as well as a “.com,” “.tech,” or “.site” generic top-level domain (“gTLD”) and in one instance a “.co” country code top-level domain (“ccTLD”).
Respondent lacks rights or legitimate interests in the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names. Respondent is not authorized or licensed to use Complainant’s 7-ELEVEN mark and there is no evidence to suggest that the Respondent listed in the WHOIS record is commonly known by the disputed domain names. See Amend. Compl. Ex. A. Respondent fails to use the disputed domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because Respondent uses the disputed domain names’ resolving webpages to offer competing cryptocurrency services. See Amend. Compl. Ex. D. Furthermore, two of the domain names’ resolving webpages are currently inactive.
Respondent registered and uses the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain names where Respondent uses the disputed domain names’ resolving webpage to sell competing cryptocurrency services. See Amend. Compl. Ex. D. Respondent also registered the disputed domain names with false or misleading WHOIS contact information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain names were each substantially similar to Complainant’s trademark.
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 Panel finds that the disputed domain names are substantially similar to Complainant’s trademark. Complainant has adequately made out its rights and interests in and to the 7-ELEVEN mark. Respondent reaches the various disputed domain names by adding generic terms and g TLDs. This is insufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s 7-ELEVEN mark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no right, permission or license to register the disputed domain names. Respondent is not known by the disputed domain names. Further, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because Respondent uses the disputed domain names’ resolving webpages to offer competing cryptocurrency services. See Amend. Compl. Ex. D. Furthermore, two of the domain names’ resolving webpages are currently inactive.
As such, the Panel finds that the Respondent has no rights or interests in or to the disputed domain names.
Finally, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name. Finally, Complainant argues Respondent registered and uses the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names in bad faith because Respondent attempts to attract, for commercial gain, users to the disputed domain names where Respondent uses the disputed domain names’ resolving webpage to sell competing cryptocurrency services. Use of a disputed domain name to offer competing services is evidence of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Here, the Panel is reminded that Complainant provides screenshots of Respondent’s disputed domain names’ resolving webpages where Respondent purportedly offers cryptocurrency services in competition with Complainant’s services. See Amend. Compl. Ex. D. Therefore, the Panel finds that the Respondent has engaged in bad faith use and registration.
Finally, Complainant contends Respondent has provided false contact information in connection with the registration of the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names. Use of false contact information in registering a domain name can be evidence of bad faith registration per Policy ¶ 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Complainant claims that Respondent’s WHOIS data for three of the disputed domain names lists the address “800 W Pender St #120, Vancouver, BC, V6C 2V6, Canada.” See Amend. Compl. Ex. A. This is the address of VBCE, a financial institution with no relationship with Respondent or its alleged services. See Amend. Compl. Exs. B-C. Furthermore, the other two disputed domain names have the address listed as “Pazmaniteng 59, Aberg, Austria 5761,” which does not exist. See Amend. Compl. Ex. A. Complainant further argues that Respondent’s webpage and alleged charity suggest a location in Nigeria, but their Twitter account lists South Carolina as their location. The Panel finds that Respondent’s registrations of the disputed domain names with false contact information is evidence of its bad faith per Policy ¶ 4(a)(iii).
Given the fame of the mark and the circumstances, the Respondent had prior actual knowledge of Complainant and Complainant’s rights in and to the 7-ELEVEN mark prior to registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <7elevencoins.com>, <7elevencoins.tech>, <7elevencoins.site>, <7elevencoins.co>, and <plus7eleven.com> domain names be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: September 10, 2019
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