Claim Number: FA1004001319918
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
NAMES
The domain names at issue are <victoriassecretsale.com> and <victoriassecretfashionshow.info>, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 19, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. 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 April 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 12, 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 postmaster@victoriassecretsale.com and postmaster@victoriassecretfashionshow.info by e-mail. Also on April 22, 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.
On May 19, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 "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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<victoriassecretsale.com> and <victoriassecretfashionshow.info>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names.
3. Respondent registered and used the <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Katrina Chawla, registered the <victoriassecretsale.com> domain name on October 25, 2009 and the <victoriassecretfashionshow.info> domain name on September 20, 2009. Respondent’s disputed domain names resolve to similar websites of which display Complainant’s models and Complainant’s VICTORIA’S SECRET mark throughout while also displaying various third-party links to both competing and unrelated 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 has established rights in
its
Complainant contends that
Respondent’s <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain
names are confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient 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 disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant argues that Respondent is not licensed by or affiliated with Complainant and that Respondent is not commonly known by the disputed domain names. The WHOIS information for the disputed domains identify “Katrina Chawla” as the registrant of both domain names and Respondent has not submitted evidence to show that it is commonly known by the <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant further argues that Respondent’s use of the
disputed domain names to maintain websites that display Complainant’s
The Panel finds that Policy ¶ 4(a)(ii) has been satisifed.
Complainant contends that Respondent has registered and used
the disputed domain name in bad faith where Respondent is diverting Internet
users to its own websites where products and business that are in competition
with Complainant are advertised. Complainant
argues that this type of use results in a loss of business for Complainant
because some Internet users will ultimately make purchases through the
third-parties that are displayed thereon.
The Panel finds that Respondent has registered and used the disputed
domain names in bad faith under Policy ¶ 4(b)(iii)
where it diverts Internet users to seeking Complainant’s products to
Respondent’s directory websites that display third-party links to the
competitors of Complainant. See Tesco Pers. Fin.
Ltd. v. Domain Mgmt. Servs., FA
877982
(Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to
the websites of a complainant’s competitors represents bad faith registration
and use under Policy ¶ 4(b)(iii)); see also Am. Online, Inc. v. Tapia,
FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet
traffic that seeks out the <aol.tv>
domain name to a competitor’s news site.
The Panel strongly finds that appropriating Complainant’s mark to refer
customers seeking Complainant to Complainant’s competitors is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant further
contends that Respondent is using the <victoriassecretsale.com> and <victoriassecretfashionshow.info>
domain names to intentionally attract Internet users to Respondent’s websites
for commercial gain. Complainant argues
that Respondent receives click-through fees for the businesses that are
advertised on Respondent’s websites resolving from the disputed domain names
and that such use is further evidence of bad faith registration and use. The Panel agrees and finds that Respondent
has registered and used the disputed domain names in bad faith under Policy ¶
4(b)(iv) by attempting to attract Internet users to
its websites for commercial gain. See Zee TV USA, Inc.
v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that
the respondent engaged in bad faith registration and use by using a domain name
that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also Maricopa
Cmty. Coll. Dist. v. College.com, LLC, FA 536190 (Nat. Arb. Forum Sept. 22, 2005) (“The
Panel infers that Respondent receives click-through fees for diverting Internet
users to a competing website. Because
Respondent’s domain name is identical to Complainant’s
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 <victoriassecretsale.com> and <victoriassecretfashionshow.info> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 21, 2010
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