Sallybeauty.sale, Sallybeauty.store

The timeline behind sallybeauty.sale

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

How each disputed name was decided in this proceeding.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Beauty Holding, LLC v. Benjamin Wilde Claim Number: FA2012001925183 PARTIES Complainant is Beauty Holding LLC ("Complainant"), represented by Laila S. Wolfgram of Polsinelli P.C., Missouri, USA. Respondent is Benjamin Wilde ("Respondent"), Italy. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <sallybeauty.sale> and <sallybeauty.store>, registered with NameCheap, Inc. PANEL 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. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on December 15, 2020; the Forum received payment on December 15, 2020. On December 16, 2020, NameCheap, Inc. confirmed by email to the Forum that the <sallybeauty.sale> and <sallybeauty.store> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 December 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2021 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@sallybeauty.sale, postmaster@sallybeauty.store. Also on December 22, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default. On January 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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. RELIEF SOUGHT Complainant requests that the domain names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant Complainant, together with its affiliates and subsidiaries, is a global distributor and specialty retailer that offers beauty products to retail consumers and salon professionals. Complainant uses SALLY BEAUTY in connection with its products and services, and claims longstanding common law trademark rights arising from such use. Complainant also owns various trademark registrations for SALLY BEAUTY (including registrations for the mark in standard character form) in the United States, the European Union, and other jurisdictions. Respondent registered the disputed domain names <sallybeauty.sale> and <sallybeauty.store> through a privacy registration service in November 2020, and is using the domain names for websites that Complainant describes as "cloned from" one of Complainant's websites, with Complainant's SALLY BEAUTY mark displayed prominently on each site. Complainant states that Respondent is not commonly known by the disputed domain names and is not authorized or licensed to use Complainant's mark. Complainant contends on the above grounds that the disputed domain names <sallybeauty.sale> and <sallybeauty.store> are identical or confusingly similar to its SALLY BEAUTY mark; 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. FINDINGS The Panel finds that each of the disputed domain names is identical 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. DISCUSSION 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"). Identical and/or Confusingly Similar Both of the disputed domain names <sallybeauty.sale> and <sallybeauty.store> correspond to Complainant's registered SALLY BEAUTY trademark, omitting the space and appending the ".sale" or ".store" top-level domain. The omission of spaces or addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Coffee Meets Bagel, Inc v. Qunhui Xiao, FA 1925237 (Forum Jan. 13, 2021) (finding <coffeemeetsbagel.org> identical to COFFEE MEETS BAGEL); Sally Holdings, Inc. v. W. Williams, D2005-1103 (WIPO Dec. 23, 2005) (finding <sallybeautysupply.net> and <thesallybeautysupply.com> confusingly similar to SALLY BEAUTY SUPPLY). The Panel considers the disputed domain names to be identical to Complainant's registered mark. Rights or Legitimate Interests 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 mark without authorization, and they are being used for websites that impersonate Complainant, presumably for fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Puppies.com, LLC v. Dieudonne Mbeh, FA 1862904 (Forum Oct. 11, 2019) (finding lack of rights or interests in similar circumstances); Brooks Sports, Inc. v. Brandon Gibson / Brooks Running Shoes, FA 1748607 (Forum Oct. 5, 2017) (same). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed 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. Registration and Use in Bad Faith Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." 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 used a privacy registration service to conceal his identity as the registrant of two domain names corresponding to Complainant's mark. While the use of a privacy registration service is not in itself determinative evidence of bad faith, it is an appropriate factor to be taken in consideration of the issue, at least in the case of a domain name that is being used for what purports to be a consumer retail business. See Morgan Stanley v. ICS INC, FA 1698162 (Forum Nov. 23, 2016) (totality of circumstances surrounding use of privacy service should be considered); IPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 3.6 (operation of "a commercial and trademark-abusive website" may be relevant to the assessment of bad faith). The Panel is also skeptical of the veracity of the underlying registration data that was disclosed after the privacy shield was lifted, considering the apparent internal inconsistencies in that data and Respondent's failure to participate in this proceeding. More importantly, Respondent is using the domain names for websites that mimic Complainant's website and display Complainant's mark in a manner clearly intended to mislead Internet users into believing that the websites are associated with Complainant, likely for purposes of diverting business from Complainant or phishing for personal information from consumers. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Puppies.com, LLC v. Dieudonne Mbeh, supra (finding bad faith in similar circumstances); Brooks Sports, Inc. v. Brandon Gibson / Brooks Running Shoes, supra (same). The Panel finds that the disputed domain names were registered and are being used in bad faith. DECISION Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <sallybeauty.sale> and <sallybeauty.store> domain names be TRANSFERRED from Respondent to Complainant. David E. Sorkin, Panelist Dated: January 18, 2021 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.