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No Slippy Hair Clippy v. Damage Sports, Inc. [2004] GENDND 1316 (26 October 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

No Slippy Hair Clippy v. Damage Sports, Inc.

Case No. D2004-0757

1. The Parties

The Complainant is No Slippy Hair Clippy of Pleasanton, California, United States of America, represented by Heimlich Law, United States of America.

The Respondent is Damage Sports, Inc. of Canton, Georgia, United States of America, of United States of America.

2. The Domain Name and Registrar

The disputed domain name <noslippyhairclippy.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2004. On September 20, 2004, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On September 20, 2004, Go Daddy Software 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 September 22, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was October 12, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 14, 2004.

The Center appointed Sandra Franklin as the sole panelist in this matter on October 19, 2004. 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

Complainant has used the mark NO SLIPPY HAIR CLIPPY since August 2000, and registered the mark in California on April 9, 2001. Complainant also filed a U. S. trademark application on September 10, 2003. Respondent registered the domain name <noslippyhairclippy.com> on August 31, 2004.

5. Parties’ Contentions

A. Complainant

Complainant makes the following assertions:

1. Respondent’s <noslippyhairclippy.com> domain name is confusingly similar to Complainant’s NO SLIPPY HAIR CLIPPY mark.

2. Respondent does not have any rights or legitimate interests in the domain name <noslippyhairclippy.com>.

3. Respondent registered and used the <noslippyhairclippy.com> domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

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 Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such 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.

A. Identical or Confusingly Similar

Complainant has established rights in the mark NO SLIPPY HAIR CLIPPY by continuously using it since 2000 and by registering the mark with the state of California and the U.S. Patent and Trademark Office. The mark is Complainant’s business name and it sells hair clips and various other hair accessories. The domain name <noslippyhairclippy.com> is identical to Complainant’s mark but for the addition of the “.com” at the end. Such an addition has been uniformly held to be insignificant by many previous Panels. For example, see Rollerblade, Inc. v. McCrady, WIPO Case No. D2000-0429 finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar; see also Victoria’s Secret v. Hardin, NAF Claim No. FA0096694 finding that the <bodybyvictoria.com> domain name is identical to Complainant’s BODY BY VICTORIA mark.

Accordingly, the Panel finds that Policy paragraph 4(a)(i) has been satisfied.

B. Rights or Legitimate Interests

The website at <noslippyhairclippy.com> resolves to a banner which states “interested in buying this domain? Inquire at: [email address]”. Respondent does not offer any bona fide goods or services under the name “no slippy hair clippy”, but rather sells sporting goods at <damagesports.com>. Respondent offered to sell the domain name to Complainant for $20,000.

Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have such rights or legitimate interests pursuant to Policy paragraph 4(a)(ii). See G.D. Searle v. Martin Mktg, NAF Claim No. FA00118277 holding that where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”; see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, WIPO Case No. D2000-1228 finding that under certain circumstances the mere assertion by Complainant that Respondent has no right or legitimate interest is sufficient to shift the burden of proof to Respondent to demonstrate that such a right or legitimate interest does exist.

There is no evidence to suggest that Respondent has been commonly known by the “NOSLIPPYHAIRCLIPPY” mark, and Respondent is not licensed by Complainant to use Complainant’s mark. Thus, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy paragraph 4(c)(ii). See Gallup Inc. v. Amish Country Store, NAF Claim No. FA0096209 finding that Respondent does not have rights in a domain name when Respondent is not known by the mark; see also Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020 finding no rights or legitimate interest where Respondent was not commonly known by the mark.

C. Registered and Used in Bad Faith

It appears that Respondent took advantage of an oversight when he snatched up the domain name <noslippyhairclippy.com> when registration by Complainant inadvertently lapsed. Respondent then offered it for sale to Complainant for 2000 times the cost of registering the domain name. This is the classic bad faith registraiton and use which the Policy seeks to quash. See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., NAF Claim No. FA0093679 finding bad faith where Respondent offered domain names for sale; see also Banca Popolare Friuladria S.p.A. v. Zago, WIPO Case No. D2000-0793 finding bad faith where Respondent offered the domain names for sale; see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., NAF Claim No. FA0095685 finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”.

The Panel finds that Policy paragraph 4(a)(iii) has been satisfied.

7. Decision

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 <noslippyhairclippy.com> be transferred to the Complainant.

Sandra Franklin
Sole Panelist

Dated: October 26, 2004