Good Hair
Days, Inc. v. Good Hair Days Salon & Network
Claim Number: FA0112000103432
PARTIES
Complainant is Good Hair Days, Inc., Leonminster, MA (“Complainant”). Respondent is Good Hair Days Salon & Network, Livermore, CA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <goodhairdays.com>, registered with Network Solutions.
PANEL
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 26, 2001; the Forum received a hard copy of the Complaint on December 26, 2001.
On January 3, 2002, Network Solutions confirmed by e-mail to the Forum that the domain name <goodhairdays.com> is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 4, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 24, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@goodhairdays.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On February 4, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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.” 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 name be transferred from Respondent to Complainant. Complainant also requests the Panel to instruct Network Solutions to release the expired domain names <goodhairdays.net> and <goodhairdays.org> so Complainant can register them; however, this second request is beyond the scope of the UDRP and the Panel can only consider the portion of the Complaint that addresses the dispute over <goodhairdays.com>.
PARTIES’ CONTENTIONS
A. Complainant makes the following allegations:
Respondent’s domain name <goodhairdays.com> is virtually identical
to Complainant’s federally registered trademark GOOD HAIR DAYS. Respondent’s attempt to sell the domain name
is evidence that Respondent is not using the domain name for a bona fide
offering or service. Complainant has
not made a legitimate noncommercial or fair use of <goodhairdays.com>.
Therefore, Respondent has not satisfied its rights and legitimate
interests in <goodhairdays.com>.
By registering <goodhairdays.com>, Respondent has registered and used the
domain name in order to prevent Complainant from reflecting its mark in a
corresponding domain name. By
registering other domain names that incorporate Complainant’s federally
registered trademark GOOD HAIR DAYS, Respondent has engaged in a pattern of
such conduct. Further, after a request
to sell <goodhairdays.com> Respondent rejected an offer from
Complainant to transfer the domain name in dispute for $500. and this may be
considered to be evidence that Respondent registered the domain name for the
purpose of selling the domain name to Complainant for an amount that is in
excess of out-of-pocket costs. Finally,
Respondent’s registration and use of <goodhairdays.com>
creates a likelihood of confusion with GOOD HAIR DAYS as to the source of the
endorsement of the website. Therefore,
Respondent’s registration and use of <goodhairdays.com> is
in bad faith.
B. Respondent did not file a Response in this proceeding.
FINDINGS
Complainant manufactures, decorates, packages and distributes various hair care products throughout the United States and Canada. Complainant registered GOOD HAIR DAYS on December 24, 1996, Registration Number 2,025,703.
Respondent registered <goodhairdays.com> August 16, 1999. Based on the evidence presented, it appears that Respondent has operated a passive website in connection with the domain name in dispute. Currently the website claims that GOOD HAIR DAYS is “coming soon.” There is also an e-mail link to info@goodhairdays.com if the viewer wants “more information” about either the domain name or website; the link does not specify the one to be reached.
With the intention
of registering <goodhairdays.com>, Complainant became aware that Respondent
had already registered the domain name.
On September 7, 1999, Complainant sent an e-mail to Respondent
indicating its desire to obtain the domain name from Respondent. After not receiving a response, Complainant
sent another e-mail to Respondent making virtually the same request. On September 9, 1999, Respondent registered
<goodhairdays.org>, <goodhairdays.net>, <goodhairdays.cc>,
and <goodhairdays.to>, all four domain names have been inactive. After another similar request and a “cease
and desist” letter from Complainant’s attorney, Respondent sent Complainant an
e-mail and informed Complainant that it could have <goodhairdays.com>
“for a price.” Almost two months later,
Complainant offered Respondent $500.00 for the disputed domain name, which
Respondent rejected.
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.”
In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and shall make the inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
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.
Complainant has established in this proceeding that it has rights in the trademark GOOD HAIR DAYS. The domain name registered by Respondent, <goodhairdays.com>, is identical to Complainant’s trademark GOOD HAIR DAYS. The disputed domain name <goodhairdays.com> incorporates the Complainant’s trademark in its entirety and causes confusion that there may be an association between Respondent’s domain name and Complainant. Hannover Ruckversicherungs-Aktiengesellschaft v. Hyungki Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, "as spaces are impermissible in domain names and a generic top-level domain such as '.com' or '.net' is required in domain names"); see also The Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that the domain name <gaygames.com> is identical to Complainant's registered trademark GAY GAMES); see also Little Six, Inc., v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that <mysticlake.net> is plainly identical to Complainant’s MYSTIC LAKE trademark and service mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has established in this proceeding that it has rights to and legitimate interests in the trademark GOOD HAIR DAYS. Respondent has failed to file a Response in this matter. As a result, the Panel is permitted to presume that Respondent has no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Complainant alleges and the only evidence in this proceeding permits the inference that Respondent has held the <goodhairdays.com> domain name for the sole purpose of selling the domain name to Complainant. Respondent’s behavior does not satisfy the requirements of Policy ¶ 4(c)(i) to show a bona fide use since Respondent’s use does not constitute a bona fide offering of goods or services. See Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).
Further, no evidence in this proceeding suggests that Respondent is commonly known as <goodhairdays.com> and Respondent would not be able therefore to satisfy the requirements of Policy ¶ 4(c)(ii). See Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).
Finally, holding a website passively is not considered a legitimate noncommercial or fair use of a domain name. Respondent also fails in this manner to satisfy Policy ¶ 4(c)(iii). See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name); see also Flor-Jon Films, Inc. v. Larson, FA 94974 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name); see also State Fair of Texas v. State Fair Guides, FA 95066 (Nat. Arb. Forum July 25, 2000) (finding that Respondent’s failure to develop the site demonstrates a lack of legitimate interest in the domain name).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Complainant also
alleges that Respondent acted in bad faith.
The evidence in this proceeding demonstrates that Respondent held the
domain name <goodhairdays.com> passively.
Further, a few months after Complainant initially contacted
Respondent, Respondent offered to sell <goodhairdays.com>
to Complainant and then rejected an
offer of $500.00. This supports a
finding that Respondent registered and held <goodhairdays.com> primarily for the purpose of selling the
domain name registration to Complainant for
valuable consideration in excess of out-of-pocket costs and a finding
that Respondent acted in bad faith as outlined in Policy ¶ 4(b)(i). See Grundfos A/S v. Lokale, D2000-1347 (WIPO Nov. 27, 2000) (failure to
use the domain name in any context other than to offer it for sale to
Complainant amounts to a use of the domain name in bad faith); see also Universal City Studios, Inc. v. Meeting
Point Co., D2000-1245 (WIPO Dec. 7, 2000) (finding bad faith where the
Respondent made no use of the domain names except to offer them to sale to the
Complainant).
After Complainant requested Respondent to cease and desist its use of Complainant’s trademark and to transfer the domain name, Respondent registered four other domain names identical to Complainant’s trademark. Respondent’s conduct supports a finding that Respondent registered and used the domain name in dispute in order to prevent Complainant from reflecting GOOD HAIR DAYS in a corresponding domain name and that Respondent has engaged in a pattern of such conduct. Therefore the Panel finds that Respondent is in violation of Policy ¶ 4(b)(ii). See Caterpillar Inc. v. Miguel Miyar Jr., FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that registering multiple domain names in a short time frame indicates an intention to prevent the mark holder from using its mark and provides evidence of a pattern of conduct); see also Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)).
The Panel finds
that Policy ¶ 4(a)(iii) is satisfied.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief be hereby granted.
Accordingly, it is Ordered that the domain name <goodhairdays.com> be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: February 15, 2002
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