Victoriassecretbras.com

The timeline behind victoriassecretbras.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Victoria's Secret Stores Brand Management, Inc. v. A Spider Web Design Claim Number: FA0803001156121 PARTIES Complainant is Victoria's Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee, of McDermott Will & Emery LLP, District of Columbia, U.S.A. Respondent is A Spider Web Design (“Respondent”), Arizona, U.S.A. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <victoriassecretbras.com>, registered with Wild West Domains, Inc. PANEL 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. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 4, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 5, 2008. On March 5, 2008, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretbras.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 March 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@victoriassecretbras.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 1, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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." 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. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <victoriassecretbras.com> domain name is confusingly similar to Complainant’s VICTORIA’S SECRET mark. 2. Respondent does not have any rights or legitimate interests in the <victoriassecretbras.com> domain name. 3. Respondent registered and used the <victoriassecretbras.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant operates nearly 1000 retail stores, as well as international mail order catalogues and a commercial website at <victoriassecret.com>, that sell a wide range of women’s lingerie, beauty products, swimwear, and other items bearing the mark VICTORIA’S SECRET. Complainant registered the VICTORIA’S SECRET mark with the United States Patent and Trademark Office (“USPTO”) on January 20, 1981 (Reg. No. 1146199). Complainant has used the VICTORIA’S SECRET mark on the Internet to promote its products and live Internet fashion shows. Respondent registered the domain name <victoriassecretbras.com> on January 20, 2007. The domain name does not resolve to an active website. DISCUSSION 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. Identical and/or Confusingly Similar The Panel finds that Complainant has established rights in the VICTORIA’S SECRET mark for purposes of Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”). Complainant contends that Respondent’s <victoriassecretbras.com> domain name is confusingly similar to its VICTORIA’S SECRET mark. The <victoriassecretbras.com> domain name differs from Complainant’s mark in four ways: (1) the apostrophe has been omitted; (2) the space between the words has been omitted; (3) the term “bras” has been added after the first two terms; and (4) the generic top-level domain (“gTLD”) “.com” has been added to the end. These changes do not sufficiently distinguish Respondent’s disputed domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not significantly distinguish the domain name from the mark); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that the respondent’s domain name <charlesjourdan.com> is identical to the complainant’s marks); Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that the <bodybyvictoria.com> domain name is identical to the complainant’s BODY BY VICTORIA mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant contends that Respondent lacks all rights and legitimate interests in the <victoriassecretbras.com> domain name. Under Policy ¶ 4(a)(ii), Complainant must first make a prima facie case against Respondent, and then Respondent must show evidence that it does have rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.”). Complainant contends that Respondent is not the owner or beneficiary of the VICTORIA’S SECRET mark, and that there is no evidence that Respondent has ever been commonly known by the <victoriassecretbras.com> domain name. The WHOIS information record for the disputed domain name lists the Respondent as “A Spider Web Design.” Based on this evidence, combined with Respondent’s failure to show evidence contrary to Complainant’s contentions, the Panel finds that Respondent is not commonly known by the <victoriassecretbras.com> domain name pursuant to Policy ¶ 4(c)(ii). See America W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also America Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). Respondent is not using the disputed domain name to resolve to any website. The Panel finds that Respondent has neither put the disputed domain name to use as a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor made a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's failure to make active use of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Complainant contends that Respondent’s failure to have the <victoriassecretbras.com> domain name resolve to an active website constitutes registration and use in bad faith. The Panel finds that under Policy ¶ 4(a)(iii), Respondent’s failure to make an active use of the <victoriassecretbras.com> domain name constitutes registration and use of the disputed domain name in bad faith. See Sporty's Farm L.L.C. v. Sportsman's Mkt., Inc., 202 F.3d 489 (2nd Cir. 2000) cert. denied, 120 S.Ct. 2719 (2000) (finding bad faith where the domain name was not used until after litigation began and the domain name did not consist of the legal name of the party); see also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <victoriassecretbras.com> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: April 14, 2008 Click Here to return to the main Domain Decisions Page. 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