Claim Number: FA0802001153878
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 <victoriassecretstars.com>, registered with Enom, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 27, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 29, 2008.
On February 27, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretstars.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 February 29, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 20, 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@victoriassecretstars.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 26, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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
<victoriassecretstars.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretstars.com> domain name.
3. Respondent registered and used the <victoriassecretstars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <victoriassecretstars.com> domain name on April 24, 2006. Respondent’s disputed domain name previously resolved to a website which displayed links to goods and services which competed with Complainant’s business. Respondent’s disputed domain name does not currently resolve to an active website.
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 <victoriassecretstars.com>
domain name fully incorporates 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 supporting these
allegations, the burden shifts to Respondent to establish it does have rights
or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel
finds Complainant has presented a sufficient prima facie case to support its allegations. 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 <victoriassecretstars.com>
domain name previously resolved to a website which displayed links to goods and
services, some of which competed with Complainant’s business. The Panel finds Respondent’s previous 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 legitimate
noncommercial or fair uses 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).
Currently, Respondent’s disputed domain name does not resolve to an active website. The Panel finds Respondent’s failure to make an active use of the disputed domain name is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or legitimate noncommercial or fair uses pursuant to Policy ¶ 4(c)(iii). See Am. Home Prods. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where the respondent failed to make an active use of the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interests can be found when the respondent fails to use disputed domain names in any way).
Also, Respondent does not appear to be commonly known by the
<victoriassecretstars.com>
domain name. The WHOIS record suggests
Respondent is known as “P J.” 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 previously resolved to a
website which displayed links to third party websites, some of which directly
competed with Complainant’s business.
The Panel finds Respondent’s previous use of the disputed domain name constitutes
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 <victoriassecretstars.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.’”).
Additionally,
Respondent’s disputed domain name does not currently resolve to an active
website. The Panel finds Respondent’s
failure to make an active use of the disputed domain name is evidence of bad
faith registration and use pursuant to Policy ¶ 4(a)(iii). See
DCI
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 <victoriassecretstars.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 9, 2008
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