Complainant is Revlon Consumer Products Corporation of New York, New York, United States of America, internally represented.
Respondent is Web Admin of Alabama, United States of America.
The disputed domain name <revloneyeshadow.org> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2010. On September 22, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On September 22, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details of the named Respondent.
The Center verified that the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 1, 2010. Efforts to serve Respondent with a copy of the Complaint are detailed in Section 6-A below.
In accordance with the Rules, paragraph 5(a), the due date for Response was October 21, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 22, 2010.
The Center appointed Richard G. Lyon as the sole panelist in this matter on October 28, 2010. The Panel finds that it was properly constituted. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant and its affiliated companies make up a well-known enterprise that sells many different types of goods around the world. Its total worldwide sales last year exceeded USD 1 billion. Complainant is best known for its cosmetics and similar beauty products, of which eye shadow and similar products are prominent.
Complainant owns fourteen trademarks for the word REVLON, standing alone, in the United States of America that are registered with the United States Patent and Trademark Office. The earliest of these submitted with the Complaint is dated 1990, with a claimed first use in commerce of 1950. Complainant holds many other trademarks for REVLON in other countries that have been duly registered with the appropriate governmental authorities.
Complainant has never transacted any business with Respondent and has never authorized Respondent to use any of its trademarks.
Respondent registered the disputed domain name on February 10, 2010. According to a screen shot annexed to the Complaint, at one time the disputed domain name resolved to a page that included hyperlinks to Complainant’s competitors and text and links that used the REVLON mark specifically. When the Panel accessed the disputed domain name, he was directed to a similar (but not identical) page, which also included links to Complainant’s competitors and frequent use of the word “Revlon.” Each page was captioned “Revlon Eye Shadow Reviews of Revlon Eye Shadow Palettes.”
Complainant contends that the disputed domain name is confusingly similar to its registered REVLON trademarks; that Respondent lacks rights or any legitimate interests in the disputed domain name; and that Respondent registered and has used the disputed domain name in bad faith. Respondent did not reply to Complainant’s contentions.
In any default case the panel must first look to the requirements of paragraph 2(a) of the Rules, which provides:
(a) When forwarding a complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility:
(i) sending Written Notice of the complaint to all postal-mail and facsimile addresses (A) shown in the domain name’s registration data in Registrar’s Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration’s billing contact; and
(ii) sending the complaint, including any annexes, in electronic form by e-mail to:
(A) the e-mail addresses for those technical, administrative, and billing contacts;
(B) postmaster@<the contested domain name>; and
(C) if the domain name (or “www.” followed by the domain name) resolves to an active web page (other than a generic page the Provider concludes is maintained by a registrar or ISP for parking domain-names registered by multiple domain-name holders), any e-mail address shown or e-mail links on that web page; and
(iii) sending the complaint, including any annexes, to any e-mail address the Respondent has notified the Provider it prefers and, to the extent practicable, to all other e-mail addresses provided to the Provider by Complainant under Paragraph 3(b)(v).
Following its customary practice, the Center in this case dispatched a hard copy of the Written Notice of the dispute to Respondent at the address set out in the contact details provided by the Registrar and simultaneously sent a copy by electronic mail to Respondent, again at the address shown in the Registrar’s contact details. The copy sent by courier was never delivered, with the courier advising that it could not make delivery without a street address. All electronic transmittals electronically bounced, with the Center receiving the following message:
“admin@admin.com
The recipient’s e-mail system can't process this message at this time. Microsoft Exchange will not try to redeliver this message for you. Please try resending this message later, or provide the following diagnostic text to your system administrator.
info@revloneyeshadow.org The recipient’s e-mail address was not found in the recipient’s e-mail system. Microsoft Exchange will not try to redeliver this message for you. Please check the e-mail address and try resending this message, or provide the following diagnostic text to your system administrator.
postmaster@revloneyeshadow.org
The recipient’s e-mail address was not found in the recipient’s e-mail system. Microsoft Exchange will not try to redeliver this message for you. Please check the e-mail address and try resending this message, or provide the following diagnostic text to your system administrator.
The following organization rejected your message: revloneyeshadow.org.”
While there is no evidence that “actual notice” occurred, these circumstances demonstrate that the Center, as provider, met the alternative criterion of paragraph 2(a), thus assuring the Panel of jurisdiction to decide this administrative proceeding. Any fault here lies with Respondent, not the Center. Respondent refused one attempted delivery, and thwarted others by not providing full or accurate contact information to the registrar.1 A domainer, indeed any domain name registrant, may not avoid a Policy proceeding simply by evasion or by intentionally shutting itself off from service of the Complaint. Especially is that true when its actions involve ignoring or not following the requirements of its registration agreement.
Unlike civil litigation in the United States, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter or result in the Policy equivalent of a default judgment. WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 4.6; The First Baptist Church of Glenarden v. Melvin Jones, WIPO Case No. D2009-0022; Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228; Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755.
Complainant bears the burden of proof to demonstrate each of these required elements from paragraph 4 of the Policy:
(i) [Respondent’s] domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) [Respondent has] no rights or legitimate interests in respect of the domain name; and
(iii) [Respondent’s] domain name has been registered and is being used in bad faith.
There is no dispute in this proceeding as to Complainant’s existing trademark rights or confusing similarity of the disputed domain name with Complainant’s marks, both of which Complainant has proven with competent evidence.
Paragraph 4(a)(ii) of the Policy requires Complainant to prove a negative. This may be accomplished by Complainant’s setting forth a prima facie case that Respondent lacks rights or a legitimate interest, upon which event the burden of production shifts to Respondent to demonstrate the contrary. WIPO Overview, paragraph 2.1. Complainant here makes its prima facie case with proof that it has never authorized Respondent to use its trademarks, and that Respondent has never been commonly known by any designation including the word REVLON. As noted, Respondent has stood silent. The record in this proceeding includes no evidence of any right or legitimate interest in any of Complainant’s marks, and the use to which the disputed domain name has been put has in such circumstance is not considered legitimate for Policy purposes.
The evidence furnished by Complainant demonstrates that Respondent falls clearly within the example of evidence of bad faith set out in paragraph 4(b)(iv) of the Policy. The content at the parking page to which the disputed domain name resolves has continuously since Respondent’s acquisition included links that indicate knowledge of Complainant and its REVLON marks, so there is no question that Respondent both registered and used the disputed domain name in bad faith. Respondent’s use of that mark is for commercial purposes and an obvious effort to take advantage of the goodwill attached to Complainant’s mark, a textbook case of cybersquatting.
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 <revloneyeshadow.org> be transferred to Complainant.
Richard G. Lyon
Sole Panelist
Dated: November 4, 2010
1 Some of Respondent’s contact information is obviously contrived. For example the listed telephone number is “+1.9999999999,” not a true United States telephone number, and the zip code of “99999” is not used in Alabama.