Claim Number: FA0912001300734
Complainant is Victoria’s Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise
R. Blakeslee, of Sequel Technology & IP Law, LLP,
REGISTRAR
The domain name at issue is <victoriasecretslingerie.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 31, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 20, 2010 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@victoriasecretslingerie.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
<victoriasecretslingerie.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriasecretslingerie.com> domain name.
3. Respondent registered and used the <victoriasecretslingerie.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Jessica Kemp, registered the <victoriasecretslingerie.com> domain name 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.
Complainant asserts rights in its
Complainant argues that Respondent’s <victoriasecretslingerie.com> domain name is confusingly
similar to Complainant’s
The Panel also finds that the deletion of the “s” from the
first word in Complainant’s mark creates a confusing similarity between the
disputed domain name and the mark. See
Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Jessica
Kemp.” Respondent is neither affiliated
with, nor has it been licensed or permitted to use, Complainant’s mark or any
domain names incorporating the
Respondent’s <victoriasecretslingerie.com> domain name was registered
on
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <victoriasecretslingerie.com> to redirect Internet users
seeking Complainant’s website to a website of Respondent that directly competes
with Complainant constitutes a disruption of Complainant’s business under
Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat.
Arb. Forum
The Panel finds Respondent’s use of the confusingly similar domain name to attract Internet users seeking Complainant’s products or services and divert them to a website that sells lingerie that competes with Complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iv) because Respondent presumably profited from this use. See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
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 <victoriasecretslingerie.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 11, 2010
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