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Diageo North America, Inc. d/b/a The 7 Crown Distilling Company v. ZJ
Case No. 2006-0210
1. The Parties
The Complainant is Diageo North America, Inc. d/b/a The 7 Crown Distilling Company, Norwalk, Connecticut, United States of America, represented by Arent Fox PLLC, United States of America.
The Respondent is ZJ, Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <seagrams7.com> is registered with Intercosmos
Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 16, 2006. On February 17, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On February 18, 2006, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 16, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 17, 2006.
The Center appointed Adam Taylor as the Sole Panelist
in this matter on March 23, 2006. The Panel finds that it was properly constituted.
The Panel has submitted the Statement of Acceptance and Declaration of Impartiality
and Independence, as required by the Center to ensure compliance with the Rules,
4. Factual Background
The Complainant, a corporation organized and existing under the laws of the State of Connecticut, is a subsidiary and affiliate of Diageo PLC, the well known international drinks company based in the United Kingdom.
The Complainant’s group produces and markets hundreds of spirits, wine and beer brands in over 200 countries including SEAGRAM’S 7 whiskey which is the number one selling United States spirit of all time. Since its launch in 1934, over 370 million cases – 4,440 million bottles – have been sold in the United States. SEAGRAM’S 7 whiskey is also consumed in many other countries.
Since 2001, Diageo PLC and its affiliates, including the Complainant, have been the exclusive worldwide licensees of various SEAGRAM marks including the following US trademarks:
March 14, 1933
October 28, 2003
Additionally, the Complainant and/or its licensor and predecessors have been using the SEAGRAM’S mark in conjunction with various word and design marks containing or comprising “7” and/or “SEVEN” for over 70 years.
The disputed domain name was registered in the name “milagros gonzalez” with a US address on June 1, 2005.
Between July 19, 2005, and July 22, 2005, the Complainant’s outside counsel unsuccessfully attempted to reach the registrant of the disputed domain name by email and telephone.
As of August 22, 2005, there was a website at the disputed domain name comprising a directory of affiliate links to alcohol-related websites.
On August 22, 2005, the Complainant’s outside counsel sent a cease and desist letter to the registrant.
On August 25, 2005, an individual claiming to be “Milagros Gonxales” left a voicemail for the Complainant’s outside counsel stating that she was confused why she received the cease and desist letter, that she had no Internet connection in her home and no connection with the domain name. She reiterated this in a subsequent telephone conversation on September 1, 2005.
On or before February 16, 2005, the disputed domain name was transferred to the Respondent.
As of February 16, 2005, the website at the disputed
domain name had changed its format but still comprised a directory of affiliate
links. These include many “Seagram’s” and “Seagram’s
7” related links as well as links to, and pop up advertisements for, other
5. Parties’ Contentions
Identical or Confusingly Similar
The SEAGRAM’S 7 marks, which are the subject of trademark registrations as well as common law and licensed rights owned by the Complainant in connection with alcoholic beverages, are inherently distinctive, have been used extensively around the world for many years and constitute one of the Complainant’s most recognized brands.
The disputed domain name is virtually identical with and confusingly similar to the common law rights of the Complainant in the mark SEAGRAM’S 7 and to the Complainant’s rights in the SEAGRAM’S 7 registered trademarks.
Rights or Legitimate Interests
The idea suggested by the disputed domain name is that any possible goods or services offered in association with it may somehow be connected with or authorized by the Complainant. It is impossible to conceive of any circumstance in which the Respondent could legitimately use the disputed domain name without creating a false impression of association with the Complainant.
The Respondent registered the disputed domain name with full awareness of the Complainant’s rights in the SEAGRAM’S 7 marks and with no intention of using the disputed domain name in connection with any type of bona fide offering of goods and services. Rather, the Respondent has used and is using the disputed domain name to trade on the Complainant’s well-known SEAGRAM’S 7 marks and goodwill associated therewith to lure Internet users seeking the Complainant’s websites and information on the Complainant’s alcoholic beverages and brands.
There is no evidence that the Respondent, as an individual, business, or other organization, has been or is commonly known by the disputed domain name or that the Respondent has acquired any trademark or service mark rights in the disputed domain name. The Complainant has never licensed, sublicensed, contracted, franchised, or otherwise permitted the Respondent in any way to use any of the SEAGRAM’S 7 marks or to apply for any domain name incorporating such marks or any variations thereof. Nor at any time has the Respondent ever had any authorization from the Complainant to register or use the disputed domain name.
There is no evidence to show that the Respondent is making any type of legitimate noncommercial or fair use of the disputed domain name. Rather, the commercial links and pop-up advertisements and downloads on the website at the disputed domain name only confirms that the Respondent’s activities are commercial.
Registered and Used in Bad Faith
Based on the email address shown in the previous Whois record, the controller of the disputed domain name is the prolific cybersquatter John Barry. See, e.g., Paramount Pictures Corporation v. Buy This Domain aka Domains Best Domains, WIPO Case No. 2003-0058 and the cases referred to therein. This person has created fictitious registrants so as to frustrate the Complainant in its attempts to locate the “registrant” of the disputed domain name. These constitute false and inaccurate contact details with respect to the registration of the disputed domain name.
Based on the Respondent’s history of registering domain names incorporating the marks of other parties, it is apparent that the Respondent registered the disputed domain name primarily for the purpose of selling, renting or transferring the disputed domain name registration to the Complainant although the Respondent has not yet demanded a monetary amount for the disputed domain name.
The Respondent was clearly well aware of the SEAGRAM’S 7 marks when the Respondent registered the disputed domain name and therefore did so to prevent the Complainant from reflecting its SEAGRAM’S 7 marks in the corresponding disputed domain name. Further, the Respondent has shown an extensive “pattern of conduct” of registering domain names incorporating the trademarks of others in which the Respondent has no rights or legitimate interests.
By its registration and use of the disputed domain name in view of the distinctiveness of the well-known SEAGRAM’S 7 marks incorporated therein, the Respondent has created a likelihood of confusion with respect to the SEAGRAM’S 7 marks as to the source, sponsorship, affiliation, and endorsement of the corresponding website and of the products and services offered on the site.
The Respondent has and, even after being placed on notice, continues to intentionally direct Internet users looking for the Complainant’s official websites to the Respondent’s unauthorized site. Even if an Internet user did conduct a further investigation and realized that the latter site was not authorized or operated by the Complainant, such does not diminish the fact that substantial confusion, or at the minimum, initial interest confusion, can occur.
The Respondent’s use of the Complainant’s SEAGRAM’S 7 marks in the disputed domain name, as well as the numerous alcohol-related links and other links and banner advertisements on it site, also constitute evidence of the Respondent’s intent to attract confused Internet users for commercial gain.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established extensive common law rights in the term SEAGRAM’S 7. The disputed domain name is identical thereto, disregarding the domain suffix.
The disputed domain name is also confusingly similar to the registered trademarks for SEAGRAM and SEAGRAM’S in which the Complainant has rights. The only difference is the addition of “s 7” and “7” respectively. These differences are insignificant and the disputed domain name still has the obvious potential to cause confusion with the registered trademarks.
The Panel concludes that the disputed domain name is both identical and confusingly similar to trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. 2003-0070.
The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant. Such use of the disputed domain name could not be said to be bona fide.
There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.
The Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
It is difficult to conceive of any genuine reason why the Respondent would wish to register the disputed domain name, which is identical to the Complainant’s well-known and distinctive trademark.
It is clear from the disputed domain name itself, and from the use of the Complainant’s trademark on the Respondent’s site, that the Respondent registered and used it with knowledge of the Complainant’s trademark.
The Respondent has used the disputed domain name for a directory website with affiliate links to sites relating to alcoholic drinks - the type of products supplied by the Complainant under its trademark.
The Respondent has not come forward to deny the Complainant’s assertions of bad faith let alone offer any explanation for its registration and use of the disputed domain name.
The Panel concludes from the foregoing that the Respondent
has registered and used the disputed domain name in bad faith in accordance
with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted
to attract Internet users to its website for commercial gain by creating a likelihood
of confusion with the Complainant’s trademark.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 the Rules, the Panel orders that the domain name <seagrams7.com> be transferred to the Complainant.
Dated: April 6, 2006