Claim Number: FA0805001191372
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 <victoriassecretsales.com>, registered with Godaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 16, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 19, 2008.
On May 16, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretsales.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 May
27, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 16, 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@victoriassecretsales.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 20, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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
<victoriassecretsales.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretsales.com> domain name.
3. Respondent registered and used the <victoriassecretsales.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <victoriassecretsales.com> domain name on January 15, 2005. Respondent’s disputed domain name resolves to a website displaying hyperlinks for several unrelated third-party websites. In addition, Respondent is offering to sell the disputed domain name via the <marketplacepro.moniker.com> domain name and website for a minimum asking price of $2,500.00.
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’s trademark registration with
the USPTO sufficiently establishes its rights in the
The Panel finds that Respondent’s <victoriassecretsales.com> domain name is confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant must first establish that Respondent lacks rights and legitimate interests with respect to the <victoriassecretsales.com> domain name. Once Complainant establishes a prima facie case, the burden then shifts to Respondent and Respondent must prove that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a sufficient prima facie case. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent is using the <victoriassecretsales.com> domain name to display hyperlinks to several third-party websites that are unrelated to Complainant. The Panel infers that Respondent is using the disputed domain name to earn click-through fees; therefore, the Panel finds that Respondent has not made 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 WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
In addition, Respondent’s WHOIS information does not indicate that Respondent is commonly known by the <victoriassecretsales.com> domain name, as Respondent is identified as “Wireless Marketing Enterprises, LLC,” and there is no other evidence in the record to show otherwise. Furthermore, Complainant asserts that Respondent is not authorized to use Complainant’s mark. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Finally, the Panel finds that Respondent lacks rights and legitimate interests in the <victoriassecretsales.com> domain name pursuant to Policy ¶ 4(c)(ii) because Respondent has offered to sell the disputed domain name. See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use); see also Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name).
The Panel concludes that Policy ¶
4(a)(ii) has been satisfied.
Based on the uncontested evidence presented by Complainant,
the Panel finds that Respondent registered and used the <victoriassecretsales.com> domain
name in bad faith because the disputed domain name contains Complainant’s
entire mark, and it is inferred that Respondent received click-through fees by
using the disputed domain name to resolve to a website that displays hyperlinks
to several unrelated third-party websites.
The Panel also concludes that Respondent’s use of the <victoriassecretsales.com> domain
name is capable of creating a likelihood of confusion regarding Complainant’s
affiliation with the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
In addition, the Panel finds that Respondent registered and
used the <victoriassecretsales.com>
domain name in bad faith because Respondent offered to sell the disputed domain
name under Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v.
AchievementTec, Inc., FA 192316 (Nat. Arb.
Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name
for $2,000 sufficient evidence of bad faith registration and use under Policy ¶
4(b)(i)); see also Bank of Am. Corp. v. Nw. Free Cmty. Access,
FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the
disputed domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).”).
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 <victoriassecretsales.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 2, 2008
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