Claim Number: FA1003001315262
Complainant is Victoria's Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise
R. Blakeslee, of Sequel Technology & IP Law, LLP,
The domain name at issue is <victorias-secret-fashion-show.info>, registered with GoDaddy.com.
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 March 25, 2010, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <victorias-secret-fashion-show.info> domain name is registered with GoDaddy.com and that Respondent is the current registrant of the name. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com 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 March 29, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to email@example.com. Also on March 29, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victorias-secret-fashion-show.info> domain name.
3. Respondent registered and used the <victorias-secret-fashion-show.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent, Nati Pula, registered the <victorias-secret-fashion-show.info>
domain name on December 5, 2007. Respondent’s
disputed domain name previously resolved to a website that mimicked
Complainant’s official <vsallaccess.com> domain name that displayed
photos and information from Complainant’s “
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 has established rights in
domain name contains Complainant’s entire VICTORIA’S SECRET mark, absent the apostrophe,
replaces the space between the words “victorias” and “secret” with a hyphen,
and includes a hyphen along with the descriptive terms “fashion show.” Complainant argues that these changes and
additions to its mark are not sufficient to remove the disputed domain name
from being confusingly similar to its mark.
Further, Complainant argues that its famous “
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant submits that Respondent does not have rights or legitimate interests in the <victorias-secret-fashion-show.info> domain name. Complainant must develop a prima facie case to show that Respondent does not have rights or legitimate interests in the disputed domain name. Upon producing a prima facie case the burden of proof shifts to Respondent to submit evidence that it does hold rights and legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002) (“Because Complainant’s submissions constitute 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 right or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also American Express Co. v. Fan Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”).
Complainant contends that Respondent is not affiliated with
Complainant, nor has Complainant licensed or authorized Respondent to use its
Respondent’s disputed domain name previously resolved to a
website that copied Complainant’s official <vsallaccess.com>
website. Complainant has submitted
evidence to show that Respondent displayed photographic images, model
information, and videos that were a nearly exact replica of Complainant’s
official website. Respondent’s previous
use of the disputed domain name also included “ads by Google” advertisements
for businesses unrelated to Complainant.
The Panel finds that this type of use is not made in connection with a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See American Int’l Group, Inc. v. Busby, FA 156251
(Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to
pass itself off as the complainant online, which is blatant unauthorized use of
the complainant’s mark and is evidence that the respondent has no rights or
legitimate interests in the disputed domain name); see also Kmart of
Further, Complainant argues that after the original
complaint was filed in this action on
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s registration and use of the <victorias-secret-fashion-show.info> domain name was made in bad faith. Complainant argues that Respondent is using the confusingly similar domain name to attract Internet users to its website for financial gain by displaying third-party links that are unrelated to Complainant. The Panel finds that Respondent’s registration and use of the <victorias-secret-fashion-show.info> domain name was made in bad faith under Policy ¶ 4(b)(iv) because there is a likelihood of confusion associated with the dispute domain name, and because Respondent may be profiting commercially from that confusion. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant).
The Panel further finds that Respondent’s current failure to
make an active use the disputed domain is further evidence of bad faith
registration and use under Policy ¶ 4(a)(iii). See
Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s
failure to make active use of its domain name in the three months after its
registration indicated that the respondent registered the disputed domain name
in bad faith); see also
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 <victorias-secret-fashion-show.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson , Panelist
Dated: April 28, 2010
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