Victoriasecretsite.info

The timeline behind victoriasecretsite.info

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. HacerFortuna.com Claim Number: FA1006001332773 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 HacerFortuna.com (“Respondent”), Florida, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <victoriasecretsite.info>, 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. Honorable Karl V. Fink (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on June 29, 2010. On June 30, 2010, GoDaddy.com Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriasecretsite.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 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@victoriasecretsite.info. Also on July 2, 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 5, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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" 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. 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 <victoriasecretsite.info> domain name is confusingly similar to Complainant’s VICTORIA’S SECRET mark. 2. Respondent does not have any rights or legitimate interests in the <victoriasecretsite.info> domain name. 3. Respondent registered and used the <victoriasecretsite.info> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Victoria’s Secret Stores Brand Management, Inc., offers for sale women’s lingerie and other apparel, personal care and beauty products, swimwear, outerwear, and gift cards. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the VICTORIA’S SECRET mark (e.g., Reg. No. 1,146,199 registered on January 20, 1981). Respondent, HacerFortuna.com, registered the <victoriasecretsite.info> domain name on January 29, 2010. The disputed domain name resolves to a website that offers VICTORIA’S SECRET gift cards to Internet users who either provide personal and financial information or purchase products from select businesses. 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 Complainant asserts rights in the VICTORIA’S SECRET mark through its numerous trademark registrations of the mark with the USPTO (e.g., Reg. No. 1,146,199 registered on January 20, 1981). It is settled precedent that registration of a mark with the USPTO sufficiently establishes a complainant’s rights in a mark under the UDRP Policy. See Enter. Rent-A-Car Co. v. Language Direct, FA 306586 (Nat. Arb. Forum Oct. 25, 2004) (finding that the complainant, who registered the ENTERPRISE RENT-A-CAR mark with the USPTO, successfully established rights in the mark); see also Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO). Therefore, the Panel finds Complainant has proved rights in the VICTORIA’S SECRET mark pursuant to Policy ¶ 4(a)(i). Complainant contends Respondent’s <victoriasecretsite.info> domain name is confusingly similar to its VICTORIA’S SECRET mark. In the disputed domain name, Respondent omits the spaces between the words in Complainant’s mark and deletes an apostrophe and the letter “s” from the first word in the mark. Respondent also adds the generic term “site” and the generic top-level domain (“gTLD”) “.info” to Complainant’s mark. Based on precedent, the Panel finds these minimal alterations do not distinguish Respondent’s domain name from Complainant’s mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also 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 Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Consequently, the Panel finds Respondent’s <victoriasecretsite.info> domain name is confusingly similar to Complainant’s VICTORIA’S SECRET mark under Policy ¶ 4(a)(i). The Panel finds Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <victoriasecretsite.info> domain name. After Complainant makes this prima facie case, the burden shifts to Respondent to demonstrate it has rights or legitimate interests. 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)). Prior panels have interpreted a Respondent’s failure to submit a Response as evidence that Respondent does not hold rights and legitimate interests. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). Although Respondent in this case failed to respond, the Panel will review the record to determine whether Respondent possesses rights or legitimate interests under the Policy ¶ 4(c) factors. Complainant asserts Respondent is not an affiliate of Complainant nor has Complainant given Respondent permission or license to use its VICTORIA’S SECRET mark in a domain name. Additionally, the WHOIS information lists “HacerFortuna.com” as the registrant of the disputed domain name. Based on the evidence in the record, the Panel finds Respondent is not commonly known by the <victoriasecretsite.info> 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 Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Complainant submits screen shots of the website that resolves from the disputed domain name. The resolving website prominently displays Complainant’s VICTORIA’S SECRET mark. The website also purports to offer $500 VICTORIA’S SECRET gift cards to Internet users who either provide personal and financial information or purchase products from select businesses. The website displays the message: “Completion of reward offers most often requires a purchase or filing a credit application and being accepted for a financial product such as a credit card or consumer loan. . . . The following section contains a representative sample of the type of sponsor offers offered in conjunction with this promotion.” The website then provides information promoting businesses unrelated to Complainant. Complainant alleges Respondent profits from its use of the disputed domain name through the receipt of referral fees. The Panel finds Respondent uses the disputed domain name to “phish” for Internet users’ personal information and to derive revenue from promoting businesses unrelated to Complainant. Therefore, the Panel finds this use does not constitute 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). See 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)); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. dovbart c/o shay shevach, FA 1331391 (Nat. Arb. Forum July 27, 2010) (finding that the respondent’s use of the disputed domain name to collect personal information from visitors and promote businesses that are unrelated to Complainant in order to profit does not qualify as 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 Complainant has satisfied Policy ¶ 4(a)(i). Registration and Use in Bad Faith Respondent’s confusingly similar disputed domain name resolves to a website that prominently displays Complainant’s VICTORIA’S SECRET mark. Moreover, Respondent uses its disputed domain name to profit from referral fees. Therefore, the Panel finds Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or the services on Respondent’s site. Consequently, the Panel finds this behavior amounts to registration and use in bad faith under Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”). The Panel also finds Respondent’s use of the disputed domain name to phish for Internet users’ personal and financial information provides further evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients). The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii). 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 <victoriasecretsite.info> domain name be TRANSFERRED from Respondent to Complainant. Honorable Karl V. Fink (Ret.), Panelist Dated: August 9, 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.