Claim Number: FA1007001334555
Complainant is Victoria's
Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee of Sequel Technology & IP Law, LLP, Washington D.C., USA. Respondent is Eric Williams (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pinkvictoriasecretgarage.info>, registered with GoDaddy.com Inc. (R171-LRMS).
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically July 9, 2010.
On July 13, 2010, GoDaddy.com Inc. (R171-LRMS) confirmed by e-mail to the National Arbitration Forum that the <pinkvictoriasecretgarage.info> domain name is registered with GoDaddy.com Inc. (R171-LRMS) and that Respondent is the current registrant of the name. GoDaddy.com Inc. (R171-LRMS) verified that Respondent is bound by the GoDaddy.com Inc. (R171-LRMS) registration agreement and thereby has 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 15, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 4, 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@pinkvictoriasecretgarage.info by e-mail. Also on July 15, 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 18, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The
domain name that Respondent registered, <pinkvictoriasecretgarage.info>,
is confusingly similar to Complainant’s
2. Respondent has no rights to or legitimate interests in the <pinkvictoriasecretgarage.info> domain name.
3. Respondent registered and used the <pinkvictoriasecretgarage.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria's Secret Stores Brand Management,
Inc., markets and sells women’s lingerie and other apparel, fragrances,
personal care and beauty products, swimwear, and outerwear through its
licensees. Complainant offers its
products under its
Respondent, Eric Williams, registered the <pinkvictoriasecretgarage.info> domain name February 3, 2010. The disputed domain name resolves to a website that contains a list of hyperlinks to third-party websites that sell competing and unauthorized versions of Complainant’s products.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 holds that Complainant established rights in its
VICTORIA’S SECRET mark pursuant to Policy ¶ 4(a)(i), due to Complainant’s
numerous trademark registrations with the USPTO for its VICTORIA’S SECRET mark
(e.g., Reg. No. 1,149,199 issued
January 20, 1981). See Miller Brewing
Complainant claims that Respondent’s <pinkvictoriasecretgarage.info>
domain name is confusingly similar to Complainant’s
Thus, the Panel finds that Respondent’s <pinkvictoriasecretgarage.info>
domain name is confusingly similar to Complainant’s
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have any rights or legitimate interests in the <pinkvictoriasecretgarage.info> domain name. Once Complainant makes a prima facie case to support its allegations, the burden shifts to Respondent to prove that it does have such rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant made a prima facie case. Given Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel still examines the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under a Policy ¶ 4(c) analysis. See 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 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.”).
The WHOIS information identifies the domain name registrant
as “Eric Williams,” which the Panel finds is not similar to Respondent’s <pinkvictoriasecretgarage.info>
domain name. Complainant asserts that
Respondent is not authorized or licensed to use Complainant’s
Respondent’s <pinkvictoriasecretgarage.info> domain name resolves to a website that contains a list of third-party hyperlinks that resolve to third-party websites offering competing and unauthorized versions of Complainant’s products. Complainant alleges that Respondent profits from the receipt of click-through fees. The Panel finds that Respondent’s use of the disputed domain name for such purposes is not evidence of a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry).
The Panel finds that Respondent does not have rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent uses its <pinkvictoriasecretgarage.info> domain name to resolve to a website that features a list of hyperlinks that resolve to third-party websites selling competing and counterfeit versions of Complainant’s products. Respondent is diverting Internet users interested in Complainant’s women’s lingerie and other apparel, fragrances, personal care and beauty products, swimwear, and outerwear to competitors of Complainant. This disrupts Complainant’s business. The Panel finds that Respondent’s registration and use of the <pinkvictoriasecretgarage.info> domain name was in bad faith under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Nat. Arb. Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”) .
Complainant further alleges that Respondent commercially
benefits from its use of the <pinkvictoriasecretgarage.info>
domain name from the receipt of click-through fees. Given Respondent’s use of the confusingly
similar disputed domain name, Internet users will likely become confused as to
Complainant’s sponsorship of, or affiliation with, the disputed domain name and
resolving website. The Panel finds that
Respondent’s attempt to profit from Internet users’ confusion constitutes bad
faith registration and use under Policy ¶ 4(b)(iv). See Maricopa Cmty. Coll. Dist.
v. College.com, LLC, FA 536190 (Nat. Arb.
Forum Sept. 22, 2005) (“The Panel infers that Respondent receives click-through
fees for diverting Internet users to a competing website. Because Respondent’s domain name is identical
to Complainant’s
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN 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 <pinkvictoriasecretgarage.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 26, 2010
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