7-Eleven, Inc. v. Lin Rui
Claim Number: FA2008001907863
Complainant is 7-Eleven, Inc. (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, United States. Respondent is Lin Rui (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seven-elevens.com>, registered with DNSPod, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 10, 2020. The Forum received payment on August 10, 2020.
On August 11, 2020, DNSPod, Inc. confirmed by e-mail to the Forum that the <seven-elevens.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. Registration Agreement, which is in Chinese, 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 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, in both English and Chinese, setting a deadline of September 3, 2020 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@seven-elevens.com. Also on August 14, 2020, 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 in both English and Chinese.
On September 9, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 name be transferred from Respondent to Complainant.
As noted, the Registration Agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant submits that the language of the proceeding should be English. Respondent has neither consented nor objected to this. The domain name <seven-elevens.com> comprises English words. It resolves to a website with exclusively English content and which transacts business in United States dollars. The Terms of Service available on the website include: “These Terms of Service and any separate agreement we provide to you shall be governed by and interpreted in accordance with English law.” Complainant submits that it is clear from the above that Respondent is not only proficient in English but uses English in legal matters, including legal matters related to the website hosted at the domain name.
In the absence of any Response, these circumstances satisfy the Panel that Respondent is proficient in English and that it would be unnecessarily time-consuming and costly to require Complainant to translate the Complaint into Chinese. Accordingly, pursuant to Rule 11(a), the Panel determines that the language of the proceedings shall be English.
A. Complainant
Complainant has been engaged in the business of offering convenience store services and a wide array of consumer goods since 1946, when it established the world’s first convenience store. Complainant has rights in the 7-ELEVEN mark through its registration with the United States Patent and Trademark Office (“USPTO”). Respondent’s <seven-elevens.com> domain name is identical or confusingly similar to Complainant’s 7-ELEVEN mark, which is famous.
Respondent lacks rights or legitimate interests in the <seven-elevens.com> domain name as Respondent is not commonly known by the domain name, nor did Complainant authorize Respondent to use the mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the domain name. Instead, Respondent operates an online store that attempts to trade on the goodwill of Complainant.
Respondent registered and uses the <seven-elevens.com> domain name in bad faith. Respondent uses the domain name to create a likelihood of confusion with Complainant’s famous 7-ELEVEN mark for commercial benefit.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 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 7-ELEVEN mark through its registration with the USPTO, e.g. Reg. No. 896,654, registered Aug. 11, 1970. Respondent’s <seven-elevens.com> domain name is confusingly similar to Complainant’s 7-ELEVEN mark since it replaces the letter “7” with the word “seven” and adds the letter “s” along with the inconsequential “.com” generic top-level domain (“gTLD”), which may be disregarded.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(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 <seven-elevens.com> domain name was registered on July 9, 2020. The website to which it resolves hosts an online store called seven-eleven, where Respondent sells a variety of goods including hand tools, bags, clothing, and sporting goods.
These circumstances, coupled 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 domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
In light of the circumstances set out in relation to the previous element, the Panel finds that Respondent was well aware of Complainant’s famous 7-ELEVEN mark when registering the domain name and did so with intent to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and of the products on its website.
Accordingly, the Panel finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seven-elevens.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 12, 2020
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