Claim Number: FA1005001325675
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 <victoriasecretperfume.net>, registered with ENOM, INC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 19, 2010.
On May 20, 2010, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <victoriasecretperfume.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 May 24, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 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@victoriasecretperfume.net. Also on May 24, 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 June 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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" 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:
1. Respondent’s
<victoriasecretperfume.net>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriasecretperfume.net> domain name.
3. Respondent registered and used the <victoriasecretperfume.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Miss S Tobin, registered the <victoriasecretperfume.net> domain name on February 15, 2010. The disputed domain name resolves to a website displaying a list of links to third-party websites that include competitors of Complainant and sites that offer Complainant’s goods.
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 it has rights in the
Complainant contends Respondent’s <victoriasecretperfume.net> domain name is confusingly
similar to Complainant’s
The Panel finds Complainant upheld its burden of proof under
Policy ¶ 4(a)(i) and finds Respondent’s disputed
domain name is confusingly similar to Complainant’s mark.
Under Policy ¶ 4(a)(ii), Complainant must establish a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant alleges that Respondent lacks rights and legitimate interests in the <victoriasecretperfume.net> domain name, thus establishing a prima facie case. Once the prima facie case has been established, the burden of proof shifts to Respondent to prove that it has rights or legitimate interests in the disputed domain name. Respondent has chosen not to respond to these proceedings, and this lack of response may be construed by the Panel as admission to the claims set forth by the Complainant. However, the Panel has the discretion to review the claims for validity 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
The WHOIS information for the <victoriasecretperfume.net> domain name lists “Miss S Tobin” as the registrant, which does not contradict
Complainant’s allegation that Respondent is not commonly known by the disputed
domain name. Additionally, Complainant
contends that it has not given authorization to Respondent for use of the
Respondent’s disputed domain name resolves to a website displaying links to third-party websites selling Complainant’s goods under its mark. Complainant alleges Respondent gains profit through click-through referral fees when an Internet user, seeking Complainant’s goods, clicks on a displayed link with the misguided assumption that the link is related to Complainant. The Panel finds that displaying links to third-party websites on a webpage resolving from a confusingly similar domain name and receiving profit from the ensuing Internet user confusion is 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 Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, does not constitute 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)).
The Panel finds Complainant upheld its burden of proof under Policy ¶ 4(a)(ii) and finds Respondent lacks rights or legitimate interest in the disputed domain name.
Respondent’s <victoriasecretperfume.net>
domain name resolves to a website that displays links to third-party websites,
some of which sell Complainant’s goods under its
Complainant asserts that Internet users, seeking Complainant’s
business, will become confused as to its sponsorship of or affiliation with Respondent’s
website resolving from its <victoriasecretperfume.net>
domain name. Complainant argues that
this confusion will stem from the confusingly similar disputed domain name, as
well as the numerous displays of Complainant’s mark on the website resolving
from the disputed domain name.
Complainant further alleges that Respondent profits from this
confusion. The Panel finds Respondent’s
profiting through Internet users’ confusion is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
The Panel finds Complainant upheld its burden of proof under Policy ¶ 4(a)(iii) and finds Respondent registered and used the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <victoriasecretperfume.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 5, 2010
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