The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Guard Whois of Zimbabwe. 2. The Domain Name and Registrar
The disputed domain name is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2015. On December 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 29, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on January 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 26, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2016.
The Center appointed Cherise Valles as the sole panelist in this matter on February 4, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is the brand owner for the Virgin Group of companies. The Virgin Group comprises over 200 companies worldwide operating in 32 countries, including throughout Europe and the United States of America. The Virgin Group employs more than 40,000 people and generates an annual group turnover in excess of GBP 4.6 billion.
The Complainant is the owner of multiple trademark registrations throughout the world for the marks VIRGIN and VIRGIN ATLANTIC. These include the following:
- United Kingdom trademark registration No. 1287264 for VIRGIN ATLANTIC, registered on June 28, 1991, in classes 41 and 43;
- United Kingdom trademark registration No. 1287263 for VIRGIN ATLANTIC, registered on April 3, 1992, in class 39;
- United Kingdom trademark registration No. 2200045 for VIRGIN ATLANTIC’S DRIVE-THRU CHECK-IN, registered on March 24, 2000, in class 39;
- United Kingdom trademark registration No. 1482432 for VIRGIN ATLANTIC TIMELESS CLASSICS, registered on October 15, 1993, in class 25.
The Complainant has also registered the trademarks VIRGIN and VIRGIN ATLANTIC as domain names under generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”) worldwide. These number in excess of 4,500 and include: , , , , , and .
The disputed domain name was registered on December 2, 2015. 5. Parties’ Contentions A. Complainant
The Complainant asserts that each of the elements enumerated in paragraph 4(a) of the Policy and the corresponding provisions in the Rules have been satisfied. In particular, the Complainant asserts that:
The disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
- The disputed domain name is confusingly similar to the Complainant’s registered trademark, VIRGIN ATLANTIC, in light of the fact that it wholly incorporates the Complainant’s mark.
The Respondent lacks rights or legitimate interests in the disputed domain name.
- The Complainant states that the Respondent should be considered as having no rights or legitimate interests in the disputed domain name. The Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name that included its trademarks.
The disputed domain name has been registered and is being used in bad faith.
- The Complainant asserts that the disputed domain name was registered and is being used in bad faith. The mere fact of registration of a domain name that is identical or confusingly similar to a famous trademark by an entity that has no relationship to that mark is itself evidence of bad faith registration and use.
The Complainant requests the Panel to issue a decision finding that the disputed domain name be transferred to the Complainant, in accordance with paragraph 4(i) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Policy provides specific remedies to trademark owners against registrants of domain names where the owner of the mark (a complainant) establishes each of the following elements:
(i) the domain name is identical or confusingly similar to a trademark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name was registered and is being used in bad faith.
The Complainant has the burden of proof in establishing each of these elements.
The Respondent has failed to file a Response in this proceeding and is therefore in default. The Panel may draw appropriate inferences from the available evidence submitted by the Complainant. A. Identical or Confusingly Similar
To prove this element, the Complainant must have trademark rights and the disputed domain name must be identical or confusingly similar to the Complainant’s trademark.
The Complainant is the owner of extensive rights in the VIRGIN and VIRGIN ATLANTIC marks. The Complainant is the owner of multiple trademark and domain name registrations in the United Kingdom and worldwide for the marks VIRGIN and VIRGIN ATLANTIC, as indicated in Section 4 above. The Complainant has also gained a significant reputation in the VIRGIN and VIRGIN ATLANTIC brands through use over decades.
The disputed domain name wholly incorporates the VIRGIN ATLANTIC trademark registered by the Complainant. Earlier UDRP decisions have held that when a domain name wholly incorporates a complainant’s registered trademark, it is sufficient to establish that a domain name is identical or confusingly similar for the purpose of the Policy. See, among others, Swarovski Aktiengesellschaft v. mei xudong,WIPO Case No. D2013-0150. Moreover, the addition of the word “tickets” to the Complainant’s VIRGIN ATLANTIC mark increases the likelihood of confusion, given that purchasing tickets is a fundamental part of air travel and the word “tickets” in the disputed domain name would be considered by Internet users to be descriptive of the service provided by the Complainant. Finally, the addition of the gTLD “.com” is irrelevant in determining whether the disputed domain name is confusingly similar to the Complainant’s mark. See, for example, LEGO Juris A/S v Mariusz Zielezny,WIPO Case No. D2010-0796.
In the light of the foregoing, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered mark and that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
The burden of proof is on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. In accordance with UDRP precedent, if a prima facie case is established by the Complainant, then the burden of production of evidence shifts to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy enumerates three non-exclusive ways in which a respondent may demonstrate rights or legitimate interests in a domain name: “Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent did not submit a Response or attempt to demonstrate any rights or legitimate interests in the disputed domain name, and the Panel draws adverse inferences from this failure, where appropriate, in accordance with the Rules, paragraph 14(b).
The disputed domain name resolves to a website that is a direct copy of the Complainant’s official Virgin Atlantic website, displaying the Complainant’s VIRGIN ATLANTIC mark and allowing customers to purchase tickets for what they believe to be Virgin Atlantic flights. This suggests that the Respondent wanted to take advantage of the Complainant’s trademarks and activities for its own gain, and that it lacks legitimate interest in the disputed domain name.
In the light of the foregoing, the Panel finds that the Complainant has established an unrebutted prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name and concludes that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name;
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct;
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
As indicated in Section 4 above, the Complainant’s VIRGIN and VIRGIN ATLANTIC trademarks were registered long before the disputed domain name was registered. The Respondent must have been aware of the existence of the Complainant’s rights in the trademarks when registering the disputed domain name. Previous UDRP panels have held that the registration of a domain name obviously connected with well-known trademarks by someone without any connection to these trademarks suggests opportunistic bad faith. See, among others, LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494.
The disputed domain name resolves to a website which offers flight-booking services. The Respondent sought to use the Complainant’s reputation and trademarks to its advantage by selling fraudulent tickets to consumers. The use of the disputed domain name with the intent to attract Internet users to the website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark constitutes evidence of registration and use in bad faith. See, for example, Radio Globo SA v. Vanilla Limited,WIPO Case No. D2006-1557.
Accordingly, the Panel concludes that the Complainant has satisfied its burden of showing bad faith registration and use of the disputed domain name under paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Cherise Valles
Sole Panelist
Date: February 19, 2016
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