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Sally Holdings, Inc. v. Michael Huang
1. The Parties
The Complainant is Sally Holdings, Inc., Denton, Texas , United States of America, represented by Roberts, Mlotkowski & Hobbes, P.C., United States of America.
The Respondent is Michael Huang, Singapore, Singapore.
2. The Domain Name and Registrar
The disputed domain name <wwwsallybeauty.com> is registered with Moniker
Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2005. On April 15, 2005, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On April 17, 2005, Moniker Online Services, LLC 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 April 20, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2005.
The Center appointed Hugues G. Richard as the sole
panelist in this matter on May 24, 2005. 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 offers retail store services, beauty supply products and related goods and services, all pertaining to the cosmetic industry. The Complainant has been widely acknowledged for its successes which have earned them the title of the world's #1 professional beauty supply distributor, selling more than 5000 salon-quality cosmetics, hair care and skin care goods, and styling appliances to professionals and consumers through direct sales and more than 2,800 Sally Beauty Supply stores in countries around the world including Canada, United States of America, Europe and Asia.
The Complainant is the owner of almost 100 registrations for trademarks incorporating the word SALLY, SALLY BEAUTY, SALLY BEAUTY SUPPLY and other marks that include the Complainants’ SALLY mark. These trademarks are registered in several countries such as United States of America and Singapore as shown in the registration certificates attached to the Complaint. It has used and continues to use the mark SALLY extensively.
According to the concerned registrar Whois database, the Respondent is a person
domiciled in Singapore.
5. Parties’ Contentions
The Complainant contends that the Respondent’s domain name <wwwsallybeauty.com> is virtually identical to Complainant’s mark SALLY BEAUTY and Complainant’s web site “www.sallybeauty.com”, with the only difference being the deletion of the period between “www” and the second level domain name. Thus, it contends the two terms are confusingly similar.
Complainant has been using one or more SALLY marks since 1964. The Complainant claims that its efforts in developing a strong business with a strong brand have permitted the acquisition of world wide fame. Hence, the Respondent is not commonly known by the domain name, that privilege being reserved for the Complainant.
The Complainant states that the only content on the Respondent’s site is an attempt to redirect the internet user to other sites, including competitors of the Complainant. Furthermore, the Complainant maintains that the Respondent’s use of the domain name is not connected to a bona fide offering of goods or services.
The Complainant alleges that the Respondent’s bad faith is proven by its intentional attempt to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark. In addition, the Complainant pertains that the Respondent is in the business of domain name trafficking. According to the Complainant, the Respondent has secured rights in many domain names all of which include trademarks of others, impeding the owners of their intellectual property rights and hence registering and using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Complainant has shown sufficient evidence pointing towards the rights it holds in the mark SALLY BEAUTY and all other SALLY trademarks. The Complainant has proceeded with the registration of the mark in several countries, as shown by the registration certificates for this mark attached to the Complaint, including the Respondent’s country. The Complainant has also established that it uses the said trademark. The Complainant’s rights in the mark have been clearly established especially since the Respondent did not contest these rights.
The Panel accepts the contention that the addition
of the letters “www” in front of the Complainant’s trademark
without the period does not change the substance of the latter’s domain
name. The Respondent’s domain name is simply a common misspelling of the
Complainant’s trademark. Numerous decisions under the Policy have already
considered that this conduct, commonly referred to as “typo squatting”,
leads to the inference of a confusingly similar domain name under paragraph
4(a)(i) of the Policy (see World Wrestling Federation Entertainment, Inc.
v. Matthew Bessette, WIPO Case No. D2000-0256,
Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook
Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc.,
WIPO Case No. D2000-0587).
Hence, the Panel finds the Complainant has shown sufficient evidence that the Respondent’s domain name <wwwsallybeauty.com> is confusingly similar to the Complainant’s trademark SALLY BEAUTY.
B. Rights or Legitimate Interests
The Complainant has not licensed or permitted in any manner the Respondent’s use of the Complainant’s trademark SALLY BEAUTY. The Complainant’s trademark is worldwide known making it implausible that the Respondent is commonly known or recognized by his domain name.
There is a commercial activity on the Respondent’s site which appears to be confusingly similar and competitive with the Complainant’s activities, consequently intentionally diverting consumers. In the absence of any effort by the Respondent to rebut the Complainant’s contentions, the Panel finds that the Complainant has satisfied its burden to show no rights or legitimate interests of the Respondent in the domain name <wwwsallybeauty.com>.
C. Registered and Used in Bad Faith
Complainant has submitted sufficient evidence to show that the Respondent is
engaged in a typosquatting practice. Indeed, the Respondent has over than 100
registered domain names that are similar to a known trademark. The Respondent
has already been condemned in three other cases with analogous facts in which
the Panel decided that “the Respondent is taking advantage of common misspellings
made by Internet users who are looking for a particular site of a particular
provider of goods or services, in order to obtain some benefit therefrom”
(see Lexar Media, Inc. v. Michael Huang, WIPO
Case No. D2004-1039, InterIKEA Systems B.V. v. Michael Huang, WIPO
Case No. D2004-0908, Desert Schools Federal Credit Union v. Michael Huang,
WIPO Case No. D2005-0203).
Furthermore, the Panel has already decided in AltaVista Co. v. Saeid Yomtobian,
WIPO Case No. D2000-0937, that misspellings
alone, such as that used by Respondent, “are sufficient to prove bad faith
under paragraph 4(b)(iv) of the Policy”. For these reasons, the Panel
finds that the Complainant has satisfied its burden to show that the Respondent
has registered and used its domain name in bad faith under paragraph 4(b) of
the Policy, especially since the Respondent has never replied to the Complainant’s
letter nor contested these procedures against him.
For all the foregoing reasons, in accordance with
paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the
domain name, <wwwsallybeauty.com> be transferred to the Complainant.
Hugues G. Richard
Date: June 7, 2005