Claim Number: FA1007001333604
Complainant is Victoria's
Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee, of Sequel Technology & IP Law, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <www-victoriassecretgift.info>, registered with GoDaddy.com Inc. (R171-LRMS).
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 2, 2010.
On July 6, 2010, GoDaddy.com Inc. (R171-LRMS) confirmed by e-mail to the National Arbitration Forum that the <www-victoriassecretgift.info> domain name is registered with GoDaddy.com Inc. (R171-LRMS) and that Respondent is the current registrant of the name. GoDaddy.com Inc. (R171-LRMS) has verified that Respondent is bound by the GoDaddy.com Inc. (R171-LRMS) 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 July 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@www-victoriassecretgift.info. Also on July 7, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 3, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant is a retail clothing company operating in commerce since 1977 in connection with the sale of women’s lingerie and other apparel, personal care and beauty products, swimwear and outerwear.
Complainant owns trademark registrations for its
Complainant operates an official website at <victoriassecret.com>, registered on January 23, 1995.
Respondent registered the <www-victoriassecretgift.info> domain name on December 27, 2009.
The disputed domain name redirects Internet users to a third-party online dating site that solicits personal information from Internet users.
Respondent profits from receipt of referral fees by redirecting Internet users to the same third-party website.
Respondent’s <www-victoriassecretgift.info>
domain name is confusingly similar to Complainant’s
Respondent is not commonly known by the disputed domain name.
Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a noncommercial or fair use.
Respondent does not have any rights to or legitimate interests in the domain name <www-victoriassecretgift.info>.
Respondent registered and uses the disputed <www-victoriassecretgift.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent 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. the domain name has been registered and is being used in bad faith.
Complainant has established its rights in the
Complainant has established rights in the
Further see Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25,
2007) (finding that it is irrelevant whether the complainant has registered its
trademark in the country of a respondent’s residence).
Respondent’s <www-victoriassecretgift.info> domain name is confusingly similar to Complainant’s mark. The domain name includes the mark in its entirety, and merely removes the punctuation (an apostrophe) and space between terms of the mark, adds letters (“www”), adds punctuation (a hyphen), adds a generic term (“gift”), and adds a generic top-level domain (“gTLD”) (“.info”). Previous panels have determined that such alterations do not distinguish a disputed domain name from a trademark for purposes of the Policy. See LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not distinguish a domain name from a competing mark); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007):
Elimination
of punctuation and the space between the words of Complainant’s mark, as well
as the addition of a gTLD does not sufficiently distinguish the disputed domain
name from the mark pursuant to Policy ¶ 4(a)(i).
See also Bond &
Co. Jewelers, Inc. v.
The Panel therefore finds that Respondent’s <www-victoriassecretgift.info>
domain name is confusingly similar to Complainant’s
Under Policy ¶ 4(a)(ii), Complainant must establish a prima facie case that Respondent lacks rights to and legitimate interests in the disputed domain name. Once the prima facie case has been established, the burden of proof shifts to Respondent to prove that it has rights to or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
complainant must first
make a prima facie case that
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.
See also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c));
Complainant has established a prima facie case, while Respondent has chosen not to respond to these proceedings. This lack of a response may be construed as an admission of the truth of the claims set out in the Complaint. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”
We will nonetheless examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine if there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by observing that Complainant asserts, and
Respondent does not deny, that Respondent is not commonly known by the disputed
domain name. Moreover, the WHOIS information for the <www-victoriassecretgift.info>
domain name lists the registrant only as “Harris Roditis,” which does not
resemble the domain name. On this
record, we must conclude that Respondent is not commonly known by the disputed
domain name so as to have demonstrated that it has rights to or legitimate
interests in the domain under Policy ¶ 4(c)(ii). See, for example, Victoria’s Secret v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28,
2001) (“Given the Complainants’ established use of their famous
We also note that Complainant contends, without objection from Respondent, that Respondent’s <www-victoriassecretgift.info> domain name redirects Internet users to a third-party dating site that solicits their personal information. Complainant further alleges, again without contradiction from Respondent, that Respondent profits from referral fees by redirecting Internet users to the same third-party website. This behavior is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a noncommercial or fair use of the contested domain name under Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003): “Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).” See also U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Nat. Arb. Forum May 6, 2003) (holding that a respondent’s use of a complainant’s mark and the goodwill surrounding that mark as a means of attracting Internet users to the website of an unrelated business was not a bona fide offering of goods or services).
Therefore, Complainant has satisfied the requirements of Policy
¶ 4(a)(ii).
Because it is confusingly similar to Complainant’s mark, Respondent’s
domain name creates a likelihood of confusion for Internet users seeking
Complainant’s business under its
For this reason, Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <www-victoriassecretgift.info> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 5, 2010
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