Claim Number: FA1006001332773
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 <victoriasecretsite.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 29, 2010.
On June 30, 2010, GoDaddy.com Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriasecretsite.info> domain name is registered with GoDaddy.com Inc. and that Respondent is the current registrant of the name. 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 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 email@example.com. 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 5, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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:
<victoriasecretsite.info> domain name is confusingly similar to
2. Respondent does not have any rights or legitimate interests in the <victoriasecretsite.info> domain name.
3. Respondent registered and used the <victoriasecretsite.info> 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, HacerFortuna.com, registered the <victoriasecretsite.info>
domain name on January 29, 2010. The
disputed domain name resolves to a website that offers
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 <victoriasecretsite.info>
domain name is confusingly similar to its
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <victoriasecretsite.info> domain name. After Complainant makes this prima facie case, the burden shifts to Respondent to demonstrate it has rights or legitimate interests. 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)). Prior panels have interpreted a Respondent’s failure to submit a Response as evidence that Respondent does not hold rights and legitimate interests. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). Although Respondent in this case failed to respond, the Panel will review the record to determine whether Respondent possesses rights or legitimate interests under the Policy ¶ 4(c) factors.
Complainant asserts Respondent is not an affiliate of
Complainant nor has Complainant given Respondent permission or license to use
Complainant submits screen shots of the website that resolves
from the disputed domain name. The
resolving website prominently displays Complainant’s
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Respondent’s confusingly similar disputed domain name
resolves to a website that prominently displays Complainant’s
The Panel also finds Respondent’s use of the disputed domain name to phish for Internet users’ personal and financial information provides further evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <victoriasecretsite.info> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 9, 2010
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