Claim Number: FA1002001307334
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 <victorias-secret-coupons.com>, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 19, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 11, 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@victorias-secret-coupons.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
<victorias-secret-coupons.com> domain name is confusingly similar
to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victorias-secret-coupons.com> domain name.
3. Respondent registered and used the <victorias-secret-coupons.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Joseph Horvath, registered the <victorias-secret-coupons.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.
Respondent, Joseph Horvath, registered the <victorias-secret-coupons.com>
domain name on
Complainant argues that Respondent’s <victorias-secret-coupons.com>
domain name is confusingly similar to
Complainant’s
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. If the Panel finds
Complainant’s allegations establish such a prima facie case, the burden
shifts to Respondent to show that it does indeed have rights or legitimate
interests in the disputed domain name pursuant to the guidelines in Policy ¶
4(c). The Panel finds
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate
interests in the disputed domain name
pursuant to Policy ¶ 4(a)(ii). Since
no response was submitted in this case, the Panel may presume Respondent has no
rights or legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum Jan. 4, 2008) (“It is well established that, once a complainant has made
out a prima facie case in support of
its allegations, the burden shifts to respondent to show that it does have
rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”);
see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <victorias-secret-coupons.com>
domain name. Complainant asserts
Respondent has no license or agreement with Complainant authorizing Respondent
to use the
The <victorias-secret-coupons.com> domain name
previously resolved to a website displaying links to competing third-party
websites. The Panel finds that
displaying competing links through a confusingly similar domain name is not a bona fide offering or goods or services
nor a legitimate noncommercial or fair use.
Therefore, the Panel finds that Respondent has not established rights or
legitimate interests in the <victorias-secret-coupons.com> domain
name pursuant to Policy ¶¶ 4(c)(i) or (iii). See
Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007)
(holding that the operation of a pay-per-click website at a confusingly similar
domain name was not 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
also Meyerson v. Speedy Web,
FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has
failed to offer any goods or services on its website other than links to a
variety of third-party websites, it was not using a domain name in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii)).
The <victorias-secret-coupons.com> domain name
currently does not resolve to an active website. The Panel finds that Respondent’s failure to
use the disputed domain name does not constitute a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use 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 Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no
rights or legitimate interests where the respondent has advanced no basis on
which the panel could conclude that it has a right or legitimate interest in
the domain names, and no commercial use of the domain names has been
established).
The Panel finds Policy ¶ 4(a)(ii) is satisfied.
Respondent previously used the <victorias-secret-coupons.com>
domain name to resolve to a website containing links to third-party websites
that directly compete with Complainant’s clothing and lingerie business. The Panel finds Respondent was using the <victorias-secret-coupons.com>
domain name to divert Internet users to Complainant’s competitors. The Panel finds Respondent’s prior use is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)); see
also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding
that the respondent registered and used the domain name <eebay.com> in
bad faith where the respondent has used the domain name to promote competing
auction sites).
The website that previously resolved from the <victorias-secret-coupons.com>
domain name displayed links to websites related to and in direct competition
with Complainant’s business. The Panel
infers Respondent received pay-per-click fees for displaying these competing
links. Since the disputed domain name is
confusingly similar to Complainant’s
Furthermore, the Panel finds that it may consider the
totality of the circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
The Panel finds that Policy ¶ 4(a)(iii) is 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 <victorias-secret-coupons.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: April 1, 2010
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