Claim Number: FA1007001337778
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 <victoriasecret18.info>, registered with eNom, Inc. (R126-LRMS).
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 27, 2010.
On July 28, 2010, eNom, Inc. (R126-LRMS) confirmed by e-mail to the National Arbitration Forum that the <victoriasecret18.info> domain name is registered with eNom, Inc. (R126-LRMS) and that Respondent is the current registrant of the name. eNom, Inc. (R126-LRMS) has verified that Respondent is bound by the eNom, Inc. (R126-LRMS) 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 29, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 18, 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@victoriasecret18.info. Also on July 29, 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 25, 2010 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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
<victoriasecret18.info> domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriasecret18.info> domain name.
3. Respondent registered and used the <victoriasecret18.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Qaiser Azeem, registered the disputed domain name on December 23, 2009. The disputed domain name redirects Internet users to a webpage resolving from the <websponsors.com> domain name and currently states “This Offer Has Expired.” Visitors to this webpage are automatically redirected to a website resolving from <e-researchcouncil.com> purporting to offer a free $1,000 VISA prepaid gift card in return for providing personal information and referring other households who must also provide personal information. The disputed domain name previously redirected Internet users to the website resolving from <myrewardscenter.us.com> and offering visitors a free VICTORIA’S SECRET gift card in exchange for personal information.
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 its
Complainant argues that Respondent’s <victoriasecret18.info>
domain name is confusingly similar
to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. However, in an effort to make a complete determination as to Respondent’s rights or legitimate interests in the disputed domain name, the Panel will analyze the record according to the factors contained in Policy ¶ 4(c). 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)); see also 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.”).
Complainant indicates that Respondent is not affiliated with
Complainant nor has Respondent been licensed or authorized to use Complainant’s
Complainant alleges that Respondent’s disputed domain name previously redirected Internet users to a website resolving from the <myrewardscenter.us.com> domain name and purported to offer visitors a free $1,000 VICTORIA’S SECRET gift card in exchange for personal information. Complainant indicates that at some point Respondent changed its resolving website to redirect Internet users to a site resolving from the <e-researchcouncil.com> domain name which purportedly offered Internet users free $1,000 VISA gift card in exchange for their personal information and a referral to other households from which Respondent then attempted to solicit personal information. Complainant presumes that Respondent profits in some way from the receipt of Internet users’ personal information. The Panel finds that Respondent’s use of the disputed domain name to “phish” for Internet users’ personal information and profit from such information is neither a bona fide offering of goods or services for the purposes of Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent registered and is using the disputed domain name to attempt to intentionally attract Internet users to a third-party site for commercial gain by creating a likelihood of confusion with Complainant’s mark. The Panel finds that Respondent’s use of the confusingly similar disputed domain name to redirect Internet users to a website that from which Respondent presumably profits, is evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
As discussed previously, Respondent appears to have engaged
in a phishing scheme whereby it attempts to obtain the personal information of
Internet users. Complainant has
asserted, and the Panel agrees, that Respondent presumably profits somehow from
the receipt of this personal information.
The Panel holds that Respondent’s registration and use of the disputed
domain name to phish for Internet users’ personal information is further
evidence of Respondent’s bad faith under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v.
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 <victoriasecret18.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 26, 2010
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