Claim Number: FA0905001264419
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 <victoriasecretangelcard.com>, registered with Fabulous.com Pty Ltd.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June 1, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 22, 2009 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@victoriasecretangelcard.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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
<victoriasecretangelcard.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriasecretangelcard.com> domain name.
3. Respondent registered and used the <victoriasecretangelcard.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent's disputed domain name was registered on
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 provided evidence of the registration of its
Respondent's
<victoriasecretangelcard.com> domain name contains
Complainant's VICTORIA'S SECRET mark with the addition of the descriptive
phrase "angel card," the deletion of the apostrophe in the mark, the
deletion of an "s" in the mark, the deletion of the space between the
terms of the mark, and the addition of the generic top-level domain
".com." The Panel finds these
alterations do not sufficiently distinguish the disputed domain name from the
mark. The Panel therefore finds the
disputed domain name is confusingly similar to Complainant's
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed domain name. Once Complainant presents a prima facie case outlining these
allegations, the burden shifts to Respondent to establish it does have rights
or legitimate interests in the disputed domain name. The Panel finds Complainant has presented a
sufficient prima facie case to support
its allegations and Respondent failed to submit a response to these
proceedings. Therefore, the Panel may
assume Respondent does not have rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel will inspect the record
and determine whether Respondent has rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c).
See Do The Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the
complainant asserts that the respondent has no rights or legitimate interests
with respect to the domain, the burden shifts to the respondent to provide
“concrete evidence that it has rights to or legitimate interests in the domain
name at issue”); see also Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that the complainant’s allegations are true unless clearly
contradicted by the evidence).
Respondent’s <victoriasecretangelcard.com> domain
name resolves to a website that displays links to goods and
services, some of which compete with Complainant’s business. The Panel finds Respondent’s use of the
disputed domain name to divert Internet users looking for Complainant’s
business to Complainant’s competitors is not a use in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat.
Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary
use of the complainant’s marks to send Internet users to a website which
displayed a series of links, some of which linked to the complainant’s
competitors, was not a bona fide offering of goods or services); see also Ameritrade Holdings Corp. v.
Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the
respondent’s use of the disputed domain name to redirect Internet users to a
financial services website, which competed with the complainant, was not a bona
fide offering of goods or services).
Additionally, the Panel finds Respondent does not appear to
be commonly known by the <victoriasecretangelcard.com>
domain name. The WHOIS record suggests
Respondent is known as “Open Water Enterprises Limited c/o Louis S.” In addition, the record indicates Complainant
has never authorized Respondent to use its
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website that
displays links to third-party websites, some of which directly compete with
Complainant’s business. The Panel finds
Respondent’s use of the disputed domain name constitutes a disruption of
Complainant’s business and is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See
Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Respondent presumably received payment for displaying links
to Complainant’s competitors on the website which resolved from the confusingly
similar <victoriasecretangelcard.com>
domain name. Thus, the Panel finds
Respondent is attempting to profit from the goodwill associated with
Complainant’s mark, which is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that
if the respondent profits from its diversionary use of the complainant's mark
when the domain name resolves to commercial websites and the respondent fails
to contest the complaint, it may be concluded that the respondent is using the
domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); 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.’”).
The Panel find Policy ¶
4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <victoriasecretangelcard.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated:
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