Claim Number: FA0803001156121
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 <victoriassecretbras.com>, registered with Wild West Domains, Inc.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 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@victoriassecretbras.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
<victoriassecretbras.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretbras.com> domain name.
3. Respondent registered and used the <victoriassecretbras.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates nearly 1000 retail stores, as well as
international mail order catalogues and a commercial website at <victoriassecret.com>,
that sell a wide range of women’s lingerie, beauty products, swimwear, and
other items bearing the mark VICTORIA’S SECRET.
Complainant registered the
Respondent registered the domain name <victoriassecretbras.com> 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.
The Panel finds that Complainant has established rights in
the
Complainant contends that Respondent’s <victoriassecretbras.com> domain name
is confusingly similar to its
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate
interests in the <victoriassecretbras.com>
domain name. Under Policy ¶ 4(a)(ii),
Complainant must first make a prima facie
case against Respondent, and then Respondent must show evidence that it does
have rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case pursuant to Policy ¶
4(a)(ii). See G.D. Searle v.
Martin Mktg., FA 118277 (Nat. Arb. Forum
Complainant contends that Respondent is not the owner or
beneficiary of the
Respondent is not using the disputed domain name to resolve to any website. The Panel finds that Respondent has neither put the disputed domain name to use as a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor made a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's failure to make active use of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s failure to have the <victoriassecretbras.com> domain name resolve to an active website constitutes registration and use in bad faith. The Panel finds that under Policy ¶ 4(a)(iii), Respondent’s failure to make an active use of the <victoriassecretbras.com> domain name constitutes registration and use of the disputed domain name in bad faith. See Sporty's Farm L.L.C. v. Sportsman's Mkt., Inc., 202 F.3d 489 (2nd Cir. 2000) cert. denied, 120 S.Ct. 2719 (2000) (finding bad faith where the domain name was not used until after litigation began and the domain name did not consist of the legal name of the party); see also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose).
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 <victoriassecretbras.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: April 14, 2008
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