Claim Number: FA0805001194792
Complainant is Victoria's Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise
R. Blakeslee, of McDermott Will & Emery LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <2victoriassecret.com>, registered with Onlinenic, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 23, 2008.
On May 22, 2008, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <2victoriassecret.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, Inc. 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 May
29, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 18, 2008
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@2victoriassecret.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 25, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<2victoriassecret.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <2victoriassecret.com> domain name.
3. Respondent registered and used the <2victoriassecret.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant currently holds registrations of the
Respondent’s <2victoriassecret.com> domain name was registered on September 27, 2007. The disputed domain name resolves to a website containing various links to and advertisements for unrelated third-parties.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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 sufficiently established its rights in the
The <2victoriassecret.com>
domain name contains the
The Panel concludes that Complainant has sufficiently satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no
rights or legitimate interests in the disputed domain name. See AOL LLC v. Gerberg, FA 780200 (Nat.
Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that
Respondent does not have rights or legitimate interest in the subject domain
names, which burden is light.”). The
Panel finds that Complainant has established a prima facie case and that the burden is thus shifted to Respondent
to show that it does have rights or legitimate interests in the <2victoriassecret.com> domain
name. See F. Hoffmann-La Roche AG v.
Di Salvatore, D2006-1417 (WIPO Feb. 1,
2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the
burden of proof shifts from the Complainant to the Respondent once the
Complainant has made out a prima facie case that the Respondent has no rights
or interests in the domain names.”).
Respondent has failed to submit a response to the Complaint. Therefore, the Panel may presume that Respondent has no rights or legitimate interests in the <2victoriassecret.com> domain name, but will nonetheless consider the evidence in the record in consideration of the elements listed under Policy ¶ 4(c). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
The WHOIS information for the <2victoriassecret.com> domain name does not indicate that
Respondent is or ever was commonly known by the <2victoriassecret.com> domain name. Additionally, Respondent has not sought, nor
has Respondent received any permission to use the
The <2victoriassecret.com>
domain name resolves to a website containing various links to and
advertisements for third-parties. The
Panel finds this to be neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA
699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a
domain name to redirect Internet users to websites unrelated to a complainant’s
mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Meyerson v. Speedy Web,
FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has
failed to offer any goods or services on its website other than links to a
variety of third-party websites, it was not using a domain name in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or
a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see
also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10,
2003) (holding that the respondent’s use of the disputed domain name to host a
series of hyperlinks and a banner advertisement was neither a bona fide
offering of goods or services nor a legitimate noncommercial or fair use of the
domain name).
The Panel concludes that Complainant has sufficiently satisfied Policy ¶ 4(a)(ii).
Respondent’s <2victoriassecret.com> domain name is confusingly similar to Complainant’s mark and resolves to a website featuring various links to and advertisements for unrelated third-parties. The Panel presumes that Respondent is commercially benefiting from such use and as such finds that Respondent registered and is using the <2victoriassecret.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Additionally, the Panel finds that the criteria set-out in Policy ¶ 4(b) are not exclusive and the Panel is therefore free to consider the circumstances of the case. See Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
The disputed domain name contains Complainant’s
The Panel concludes that Complainant has sufficiently satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <2victoriassecret.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: July 7, 2008
National
Arbitration Forum
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