Ilovevictoriassecret.com

The timeline behind ilovevictoriassecret.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.J.'s Computer Bug, Inc. Claim Number: FA0911001295419 PARTIES 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 A.J.'s Computer Bug, Inc. (“Respondent”), Oregon, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <ilovevictoriassecret.com>, registered with Godaddy.com, 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. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on November 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 20, 2009. On November 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ilovevictoriassecret.com> 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 November 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 14, 2009 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@ilovevictoriassecret.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On December 21, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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." 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 <ilovevictoriassecret.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 <ilovevictoriassecret.com> domain name. 3. Respondent registered and used the <ilovevictoriassecret.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Victoria's Secret Stores Brand Management, Inc., uses the VICTORIA’S SECRET mark as the name of more than 1,000 Victoria’s Secret retail stores located throughout the United States, which advertise and sells a wide range of items bearing the VICTORIA’S SECRET mark. Complainant holds numerous registrations of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,146,199 issued January 20, 1981). Respondent registered the <ilovevictoriassecret.com> domain name on September 28, 2007. The disputed domain name resolves to a website that articles about Complainant’s products, content from Complainant’s website, and hyperlinks to Complainant’s competitors’ websites. 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 under Policy ¶ 4(a)(i) through its numerous registrations of the mark with the USPTO (Reg. No. 1,146,199 issued January 20, 1981). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”). Respondent’s <ilovevictoriassecret.com> domain name contains Complainant’s VICTORIA’S SECRET mark in its entirety, absent the apostrophe and space, adds the generic phrase “i love,” and the generic top-level domain (“gTLD”) “.com.” The Panel finds, as previous panels have, that these alterations to Complainant’s mark do not sufficiently distinguish the disputed domain name from Complainant’s mark. See Victoria’s Secret v. Plum Promotions, FA 96503 (Nat. Arb. Forum Feb. 27, 2001) (“The mere addition of the generic term “tv” does not reduce the likelihood of confusion under Policy 4(a)(i).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Upon making such a showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). The burden now shifts to Respondent, from whom no response was received. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also 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. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). Although Respondent has not made any allegations that it has rights or legitimate interests in the disputed domain name, the Panel elects to examine the record under Policy ¶ 4(c). Respondent is listed in the WHOIS information as “A.J.'s Computer Bug, Inc.,” which does not indicate that Respondent is commonly known by the <ilovevictoriassecret.com> domain name. Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Respondent’s <ilovevictoriassecret.com> domain name resolves to a website that features articles about Complainant, includes content from Complainant’s website, and displays hyperlinks to Complainant’s competitors’ websites. The Panel presumes that Respondent receives click-through fees for these hyperlinks. Therefore, the Panel finds that Respondent’s use of the disputed domain name 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Since Respondent registered the <ilovevictoriassecret.com> domain name on September 28, 2007, disputed domain name has resolved to a website that features content from Complainant’s website, articles about Complainant, and competing hyperlinks. The Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business. The Panel further finds that such a disruption constitutes bad faith registration and use 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 Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names). The Panel finds that Respondent’s use of the confusingly similar <ilovevictoriassecret.com> domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name. The Panel further finds that Respondent is commercially gaining from this likelihood of confusion through its presumed receipt of click-through fees, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). 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 <ilovevictoriassecret.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: January 4, 2010 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.