Claim Number: FA0910001288062
Complainant is Victoria's
Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee, of Sequel Technology & IP Law, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <victoriassecretgifts.net>, registered with Enom, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 8, 2009.
On October 7, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretgifts.net> 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 October 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 3, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 6, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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:
<victoriassecretgifts.net> domain name is confusingly similar to
2. Respondent does not have any rights or legitimate interests in the <victoriassecretgifts.net> domain name.
3. Respondent registered and used the <victoriassecretgifts.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria’s Secret Stores Brand Management,
Inc., sells women’s lingerie and other apparel, personal care and beauty
products, swimwear, outerwear, and gift cards.
Complainant has sold these products under the
Respondent, egyGossip.com c/o Islam Mashaal, registered the <victoriassecretgifts.net> domain name on June 3, 2009. The disputed domain name resolves to a website featuring hyperlinks to unrelated third parties, and attempts to collect personal information by offering Internet users a chance to win a gift card for Complainant’s products in exchange for Internet users’ personal information.
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 contends it has established rights in the
Complainant alleges that Respondent’s <victoriassecretgifts.net>
domain name is confusingly similar to Complainant’s
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <victoriassecretgifts.net> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <victoriassecretgifts.net> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See 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); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <victoriassecretgifts.net> domain
name. Complainant asserts that
Respondent is not authorized to use the
Respondent’s <victoriassecretgifts.net> domain
name resolves to a website featuring hyperlinks to unrelated third parties’
websites. Respondent also uses the
disputed domain name to offer a gift card for Complainant’s products. Internet users are asked for personal
information and asked to complete a survey in order to receive the gift card. The personal contact information is then used
to send Internet users other offers for other businesses. Respondent likely profits
from both the use of the hyperlinks and the receipt of the personal contact
information. The Panel finds this
use is not a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a legitimate noncommercial or fair use of the domain name under
Policy ¶ 4(c)(iii). See 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); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA
948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights
or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the
disputed domain name to operate a website featuring links to goods and services
unrelated to the complainant); see also
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers Respondent receives click-through fees from
the unrelated hyperlinks found on the website resolving from the <victoriassecretgifts.net>
domain name. The Panel further infers
Respondent profits from the Internet user’s personal contact information by
contacting these users to market unrelated products. Internet users, interested in Complainant and
Complainant’s lingerie and other apparel, personal care and beauty, swimwear,
and outerwear products, may become confused as to Complainant’s affiliation and
sponsorship of the confusingly similar <victoriassecretgifts.net>
domain name and resolving website.
Therefore, the Panel finds Respondent’s use of the disputed domain name
constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See
The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <victoriassecretgifts.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 20, 2009
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