7-Eleven, Inc. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot
Claim Number: FA2304002041478
Complainant is 7-Eleven, Inc. ("Complainant"), United States, represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Domain Sales - (Expired domain caught by auction winner) c/o Dynadot ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <biggulpmedianetwork.com> and <gulpmedianetwork.com>, registered with Dynadot, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on April 24, 2023; Forum received payment on April 24, 2023.
On April 26, 2023, Dynadot, LLC confirmed by email to Forum that the <biggulpmedianetwork.com> and <gulpmedianetwork.com> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 April 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@biggulpmedianetwork.com, postmaster@gulpmedianetwork.com. Also on April 26, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant and its licensees offer convenience store services and products at more than 70,000 7-Eleven stores in the United States and many other countries. Complainant has used the BIG GULP and GULP marks in connection with self-serve fountain sodas for more than 40 years. Complainant owns United States trademark registrations for BIG GULP and GULP in standard character form, and claims that these marks have become famous as a result of longstanding and extensive use. Complainant has also filed intent-to-use trademark applications for BIG GULP MEDIA NETWORK and GULP MEDIA NETWORK; these applications were filed on August 31, 2022, and September 22, 2022, respectively.
Respondent registered the disputed domain names <biggulpmedianetwork.com> and <gulpmedianetwork.com> on September 3, 2022, and September 26, 2022, respectively. Complainant notes that each of these domain names was registered a few days after Complainant applied to register the corresponding trademark. Each domain name is being used to redirect to a landing page that offers the domain name for sale for $4,995. Complainant states that Respondent is not commonly known by the domain names, has no relationship with Complainant, and is not licensed to use Complainant's marks.
Complainant contends on the above grounds that each of the disputed domain names <biggulpmedianetwork.com> and <gulpmedianetwork.com> is confusingly similar to Complainant's marks; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used 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(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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <biggulpmedianetwork.com> incorporates Complainant's registered BIG GULP trademark, omitting the space and adding the generic terms "media" and "network" and the ".com" top-level domain. Similarly, the disputed domain name <gulpmedianetwork.com> incorporates Complainant's registered GULP trademark, adding the generic terms "media" and "network" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain names and Complainant's registered BIG GULP and GULP marks. See, e.g., Enel S.p.A. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot, D2023-0668 (WIPO Apr. 3, 2023) (finding <enelxwaywaymedia.com> confusingly similar to ENEL X WAY). The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered marks without authorization. They are configured to redirect users to landing pages that offer the domain names for sale; this is the only apparent use to which they have been put. Such use does not give rise to rights or legitimate interests in a domain name for purposes of the Policy. See, e.g., Enel S.p.A. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot, supra (finding lack of rights or interests in similar circumstances); TechSmith Corp. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot / Super Privacy Service LTD c/o Dynadot, FA 1838267 (Forum May 15, 2019) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered two domain names incorporating Complainant's well-known marks. Each domain name was registered within days after Complainant submitted an application to register a corresponding trademark. The only apparent use to which Respondent has put the domain names is to redirect them to landing pages that offer the domain names for sale at a price that the Panel infers to be far in excess of Respondent's out-of-pocket costs. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Arredondo & Co., LLC v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot, FA 1860908 (Forum Oct. 29, 2019) (finding opportunistic bad faith registration and use in similar circumstances); TechSmith Corp. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot / Super Privacy Service LTD c/o Dynadot, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <biggulpmedianetwork.com> and <gulpmedianetwork.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 19, 2023
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