Claim Number: FA1006001331448
Complainant is Victoria’s
Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee, of Sequel Technology & IP Law, PLLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <victoriasecretsgiftcard.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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 22, 2010.
On June 23, 2010, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <victoriasecretsgiftcard.com> 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 July 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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 firstname.lastname@example.org. Also on July 2, 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 August 6, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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:
<victoriasecretsgiftcard.com> domain name is confusingly similar
2. Respondent does not have any rights or legitimate interests in the <victoriasecretsgiftcard.com> domain name.
3. Respondent registered and used the <victoriasecretsgiftcard.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria’s Secret Stores Brand Management,
Inc., offers for sale women’s lingerie and other apparel, personal care and
beauty products, swimwear, outerwear, and gift cards. Complainant holds numerous trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
Respondent, Alicia Systems c/o Robert Jillie, registered the
<victoriasecretsgiftcard.com> domain name on December 3, 2009. The disputed domain name resolves to a
website that purports to offer a “free”
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 the
Complainant contends Respondent’s <victoriasecretsgiftcard.com>
domain name is confusingly similar to its
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first establish Respondent lacks rights and legitimate interests in the <victoriasecretsgiftcard.com> domain name pursuant to Policy ¶ 4(a)(ii). The burden then shifts to Respondent to show it has rights or legitimate interests in the domain name under the Policy ¶ 4(c) factors. See 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)). In the past, panels have found Respondent’s failure to submit a Response demonstrated a lack of rights or legitimate interests. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). Although Respondent has failed to respond to Complainant’s allegations, the Panel will independently evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts Respondent is not affiliated with
Complainant nor has Complainant given Respondent permission to use its
Complainant avers the disputed domain name resolves to a
website that purports to offer a “free”
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
As previously discussed, the Panel finds Respondent’s <victoriasecretsgiftcard.com>
domain name is confusingly similar to Complainant’s
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <victoriasecretsgiftcard.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: August 12, 2010
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