Claim Number: FA1007001333659
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 <victoriasecretgiftcards.info>, registered with GoDaddy.com 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 2, 2010.
On July 6, 2010, GoDaddy.com Inc confirmed by e-mail to the National Arbitration Forum that the <victoriasecretgiftcards.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 8, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 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@victoriasecretgiftcards.info by e-mail. Also on July 8, 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 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 "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
<victoriasecretgiftcards.info> domain name is confusingly similar
to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriasecretgiftcards.info> domain name.
3. Respondent registered and used the <victoriasecretgiftcards.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria's Secret Stores Brand Management,
Inc., is an international designer, manufacturer, and distributor of women’s
lingerie, clothing, evening wear, perfume, and related accessories that it
sells through retail stores and online.
Complainant owns multiple trademark registrations with the United States
Patent and Trademark Office ("USPTO") for its
Respondent, Alysha Miller, registered the <victoriasecretgiftcards.info>
domain name on September 24, 2009.
Respondent’s disputed domain name currently resolves to a website
located at <lynxtrack.com> which reads, “Oops! We’re sorry, but the
campaign you have clicked on is unavailable.
We apologize for any inconvenience.”
The current website also contains a series of advertisements for
businesses unrelated to Complainant.
Respondent previously used the <victoriasecretgiftcards.info>
domain name to resolve to a website located at <exclusivegiftcards.com>
that purported to offer a free $250
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 argues that the <victoriasecretgiftcards.info>
domain name is confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not possess rights and legitimate interests in the <victoriasecretgiftcards.info> domain name under Policy ¶ 4(a)(ii). Previous panels have found that a complainant must first make a prima facie case in support of its contentions, and upon production of such the burden of proof will shift to Respondent to prove that it does have rights and legitimate interests in the domain name. 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)). The Panel finds that Complainant has produced a prima facie case and that the burden has properly shifted to Respondent to establish its rights and legitimate interests in the <victoriasecretgiftcards.info> domain name. Due to Respondent’s failure to respond to these proceedings the Panel finds that it may presume that Respondent does not have rights and legitimate interests in the disputed domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). However, the Panel will evaluate the evidence on record to determine whether Respondent possesses rights and legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the disputed domain name and that Complainant has not authorized Respondent to
use its
Complainant further argues that Respondent’s disputed domain
name currently resolves to the third-party website <lynxtrack.com>, which
reads: “Oops! We’re sorry, but the campaign you have clicked on is
unavailable. We apologize for any
inconvenience.” Complainant contends
that the current website also contains a series of advertisements for
businesses unrelated to Complainant.
Complainant contends that Respondent’s current use of the disputed
domain name to resolve to a third-party website that displays advertisements
and links to websites and businesses unrelated to Complainant, presumably for
financial gain, is not a use in connection with a bona fide offering of goods or services or a legitimate
noncommercial or fair use. The Panel
agrees and finds that Respondent is not using the disputed domain name as 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 Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum
June 11, 2006) (finding that the respondent’s use of a domain name to redirect
Internet users to websites unrelated to a complainant’s mark is not a bona
fide use under Policy ¶ 4(c)(i)); see
also Constellation Wines U.S., Inc.
v. Tex. Int’l Prop. Assocs.,
FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no
rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using
the disputed domain name to operate a website featuring links to goods and
services unrelated to the complainant).
Complainant also argues that Respondent’s previous use, as late as February 20, 2010, was to resolve to the third-party website <exclusivegiftcards.com> which purported to offer Internet users a $250 VICTORIA’S SECRET gift card in exchange for providing personal information and completing a series of offers from businesses unrelated to Complainant. Complainant contends that Respondent received referral fees for directing Internet traffic to the above mentioned website. The Panel finds that Respondent’s previous use of the disputed domain name to redirect Internet users to a third-party website that asks Internet users to provide personal information and to complete sponsored offers from other businesses to receive a $250 VICTORIA’S SECRET gift card 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 WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent previously used the
disputed domain name to resolve to a third-party website that purported to give
away a $250
Further, Complainant argues that
Respondent’s current use of the <victoriasecretgiftcards.info>
domain name to resolve to the third-party
website <lynxtrack.com>, which reads: “Oops! We’re sorry, but the
campaign you have clicked on is unavailable.
We apologize for any inconvenience,” which also contains a series of
advertisements and hyperlinks to businesses unrelated to Complainant is further
evidence of bad faith. Complainant
argues that Respondent receives click-through fees associated with such links
and such use is further evidence of bad faith registration and use. The Panel finds that Respondent’s current use
of the disputed domain name to resolve to a third-party website that contains
advertisement and hyperlinks to businesses unrelated to Complainant, presumably
for financial gain is further evidence of Respondent’s bad faith registration
and use under Policy ¶ 4(b)(iv). See The
Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be
For
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 <victoriasecretgiftcards.info> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 12, 2010
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