Claim Number: FA0802001155619
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 <victoriassecretswimwear.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 3, 2008.
On February 29, 2008, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <victoriassecretswimwear.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 March 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 24, 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@victoriassecretswimwear.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 31, 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
<victoriassecretswimwear.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretswimwear.com> domain name.
3. Respondent registered and used the <victoriassecretswimwear.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, NOLDC, Inc., registered the <victoriassecretswimwear.com> domain name on June 11, 2005. Respondent’s disputed domain name resolves to a parked page that displays a list of hyperlinks advertising goods that compete with Complainant’s business.
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 alleges rights to the
Complainant also alleges that the <victoriassecretswimwear.com> domain
name is confusingly similar to its
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <victoriassecretswimwear.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). 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. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the <victoriassecretswimwear.com>
domain name, either as a business, individual, or other organization. The WHOIS information identifies Respondent
as “NOLDC, Inc.” and the Panel can find no other evidence in the record
indicating that Respondent might be commonly known by the disputed domain
name. Therefore, the Panel concludes
that Respondent lacks rights and legitimate interests in the <victoriassecretswimwear.com> domain
name pursuant to Policy ¶ 4(c)(ii). See Wells Fargo
& Co. v. Onlyne Corp. Services11, Inc.,
FA 198969 (Nat. Arb. Forum Nov. 17,
2003) (“Given the WHOIS contact information for the disputed domain [name], one
can infer that Respondent, Onlyne Corporate Services11, is not commonly known
by the name ‘welsfargo’ in any derivation.”); see also Ian Schrager Hotels,
L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003)
(finding that without demonstrable evidence to support the assertion that a
respondent is commonly known by a domain name, the assertion must be rejected).
Respondent is using the <victoriassecretswimwear.com> domain name to redirect Internet users to a parked page that advertises goods that compete with Complainant’s business. The Panel presumes that Respondent earns click-through fees for each redirected Internet user. The Panel determines that this use of the <victoriassecretswimwear.com> domain name is not in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also 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).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
As mentioned above, Respondent’s <victoriassecretswimwear.com> domain name displays a parked page that advertises goods that compete with Complainant’s business. This use of the disputed domain name is likely to disrupt Complainant’s business by diverting potential customers to the websites of Complainant’s competitors. Therefore, the Panel finds that Respondent’s registration and use of the <victoriassecretswimwear.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Complainant alleges that Respondent’s use of the confusingly
similar <victoriassecretswimwear.com>
domain name also creates a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of Respondent’s website the resolves
from the disputed domain name.
Complainant further contends that Respondent receives click-through fees
for each redirected Internet user, and is therefore attempting to commercially
gain and profit off the goodwill associated with Complainant’s
The Panel finds that 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 <victoriassecretswimwear.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 14, 2008
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