Claim Number: FA0907001275956
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 <victoriassecretandgaggingwomen.info>, registered with GoDaddy.com, 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.
James A Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 28, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 28, 2009.
On July 28, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretandgaggingwomen.info> 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 July 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 19, 2009 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@victoriassecretandgaggingwomen.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 25, 2009 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A Crary 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
<victoriassecretandgaggingwomen.info>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretandgaggingwomen.info> domain name.
3. Respondent registered and used the <victoriassecretandgaggingwomen.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria’s Secret Stores Brand Management,
Inc., operates more than 1,000 VICTORIA’S SECRET stores in the United States,
along with 300 in Canada, and sells a wide range of items under the VICTORIA’S
SECRET mark. Complainant has registered
its
Respondent registered the <victoriassecretandgaggingwomen.info> domain name on September 5, 2008. The disputed domain name resolves to a website that displays links to third-party adult-oriented websites.
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 registrations of the
The <victoriassecretandgaggingwomen.info> domain
name contains the
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See 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).”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
There is no evidence in the record, including the WHOIS
information, to conclude that Respondent is commonly known by the disputed
domain name. Moreover, Complainant
contends that Respondent is not a licensee of Complainant, and that Respondent
is not authorized to register or use the disputed domain name or the
Respondent’s disputed domain name resolves to a website that displays links to third-party adult-oriented websites. The Panel presumes that Respondent is monetarily benefiting from the receipt of commercial referral fees. Therefore, the Panel finds that Respondent has not engaged in 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 Paws, Inc. v. Zuccarini, FA 125368 (Nat. Arb. Forum Nov. 15, 2002) (holding that the use of a domain name that is confusingly similar to an established mark to divert Internet users to an adult-oriented website “tarnishes Complainant’s mark and does not evidence noncommercial or fair use of the domain name by a respondent”); see also Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to a adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)).
Moreover, the use of the disputed domain name as a vehicle
for adult-oriented material tarnishes Complainant’s mark and constitutes
evidence itself of a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Am. Online, Inc. v. Bates, FA
192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a
domain name that is confusingly similar to another's mark by linking the domain
name to an adult-oriented website [is] evidence that the registrant lacks
rights or legitimate interests in the domain name.”); see also Nat’l
Football League Props., Inc. v. One Sex Entm’t Co., D2000-0118 (WIPO Apr.
17, 2000) (finding that the respondent had no rights or legitimate interests in
the domain name <chargergirls.net> where the respondent linked the domain
name to its adult-oriented website).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
The disputed domain name, which was registered on September 5, 2008, resolves to a website that displays click-through commercial links to adult-oriented websites. Thus, Respondent has intentionally created a likelihood of confusion as to Complainant’s affiliation with or endorsement of the disputed domain name and resolving website. This constitutes evidence that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Google Inc. v. Bassano, FA 232958 (Nat. Arb. Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) ( “[W]hatever the motivation of Respondent, the diversion of the domain name to a pornographic site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”).
Moreover, the Panel finds that this adult-oriented use of
the disputed domain name and resolving website constitutes evidence itself of
bad faith registration and use under Policy ¶ 4(a)(iii). See Ty,
Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent
contrary evidence, linking the domain names in question to graphic,
adult-oriented websites is evidence of bad faith); see also CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26,
2000) (“this association with a pornographic web site can itself constitute a
bad faith”).
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 <victoriassecretandgaggingwomen.info> domain name be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: September 11, 2009
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