WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sheetz of Delaware Inc. v. Vietnam Domain Privacy Services / Pham Dinh Nhut
Case No. D2017-1332
1. The Parties
The Complainant is Sheetz of Delaware Inc. of Altoona, Pennsylvania, United States of America (“United States”), represented by McQuaide Blasko Attorneys at Law, United States.
The Respondent is Vietnam Domain Privacy Services of Ho Chi Minh City, Viet Nam / Pham Dinh Nhut of Ho Chi Minh City, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <sheetzjobs.com> is registered with April Sea Information Technology Corporation (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 11, 2017. On July 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 14, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 14, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on July 14, 2017.
On July 14, 2017, the Center sent an email communication to the Parties in both Vietnamese and English regarding the language of the proceeding. On July 14, 2017, the Complainant requested for English to be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on July 25, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 14, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 15, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 24, 2017. 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, paragraph 7.
4. Factual Background
The Complainant is a company incorporated in the State of Delaware in the United States, and is the owner of United States trade mark registration number 1274635 for the trade mark SHEETZ (the “Trade Mark”), with a registration date of April 17, 1984. The Complainant has been using the Trade Mark since 1941 in connection with its retail convenience store and gasoline store services in the United States.
The Respondent is an individual resident in Viet Nam.
C. The Disputed Domain Name
The disputed domain name was registered on September 12, 2007.
D. Use of the Disputed Domain Name
The disputed domain name is resolved to a website which provides sponsored links to employment related websites (the “Website”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Vietnamese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
Amongst other submissions, the Complaint submits that the content of the Website is exclusively in English.
The Respondent, having received notice of the proceeding in both Vietnamese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety, together with the word “jobs”, which does not serve to distinguish the disputed domain name from the Trade Mark in any significant way.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which, without the Complainant’s authorisation, makes use of the Trade Mark to provide sponsored links to employment related websites, including in particular relating to employment opportunities at convenience stores.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The evidence on record indicates that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain name.
In light of the evidence of the Respondent’s use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. The Panel notes that, in particular, the Complainant provides on its website “www.sheetz.com” online job search databases (at “www.sheetzjobz.com” and “www.jobz.sheetz.com”) for individuals to search and apply for jobs online.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <sheetzjobs.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: September 7, 2017