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 Reap Usd of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 11, 2016. The same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 14, 2016, 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.
On November 21, 2016, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On November 28, 2016, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 proceedings commenced on December 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 21, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 22, 2016.
The Center appointed Matthew Kennedy as the sole panelist in this matter on January 5, 2017. 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. “Virgin Atlantic” is the trade name of a British airline company in that corporate group. The Complainant is the owner of multiple registrations of the trademark VIRGIN ATLANTIC in different jurisdictions including United Kingdom registration number 1287264, registered on June 28, 1991 and still current. The Complainant has also registered a large number of domain names, including , registered in 1998, where it provides its services.
The Respondent is an organization located in China. The disputed domain name was registered on November 18, 2015. Due to the fact that the Respondent’s contact address in the Registrar’s WhoIs database is incomplete, the courier was unable to deliver the hard copy of the Written Notice to it.
The disputed domain name is parked at a landing page in English and Chinese hosted by the Registrar. The website states that “The domain is for sale or rent or cooperate” and poses the question “Are you interested in purchasing the domain?” The website prominently displays an advertisement for a domain name payment platform associated with the Registrar. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical or confusingly similar to the Complainant’s VIRGIN and VIRGIN ATLANTIC trademarks.
The Respondent has no rights or legitimate interests in the disputed domain name. Bearing in mind the Complainant’s massive reputation in its marks, there is no believable or realistic reason for registration or use of the disputed domain name other than to take advantage of the Complainant’s rights. The disputed domain name resolves to an advertisement for the sale of the disputed domain name which is not a bona fide offering of goods and services nor a legitimate or fair use of the disputed domain name. The Respondent is not commonly known by the names “Virgin” or “Virgin Atlantic” and has no trademark registrations for either of those names.
The disputed domain name was registered and is being used in bad faith. The Respondent registered the disputed domain name in order to sell, rent or otherwise transfer it to the Complainant for valuable consideration in excess of out of pocket expenses. The disputed domain name only directs Internet traffic to the landing page due to the association of the disputed domain name with the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main reasons are that the disputed domain name owner speaks English, as evidenced by the language of the disputed domain name itself and the website to which it resolves.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding takes place with due expedition. Prior UDRP panels have found that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
The Panel observes that the Complaint in this proceeding was filed in English. The Panel notes that the website to which the disputed domain name resolves is in English, from which it is reasonable to infer that the Respondent understands that language. Further, the Respondent has expressed no interest in responding to the Complaint or otherwise participating in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel confirms that it would have accepted a response in Chinese, but none was filed. 6.2. Analysis and Findings
The Respondent’s failure to file a formal response does not automatically result in a decision in favor of the Complainant. Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the VIRGIN ATLANTIC trademark.
The disputed domain name incorporates the VIRGIN ATLANTIC trademark in its entirety. The disputed domain name also substitutes a hyphen for the space between the terms in the trademark. The Panel finds that the hyphen does not distinguish the disputed domain name from the VIRGIN ATLANTIC trademark.
The only other element in the disputed domain name is the generic Top-Level Domain (“gTLD”) suffix “.xyz”. A gTLD suffix is generally disregarded in the assessment of confusing similarity under the Policy. The Panel see no reason why this particular gTLD suffix would distinguish the disputed domain name from the Complainant’s trademark for the purposes of the Policy.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the Respondent has] acquired no trademark or service mark rights; or
(iii) [the Respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel has already found that the disputed domain name is confusingly similar to the Complainant’s VIRGIN ATLANTIC trademark. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name.
As regards the first circumstance above, the disputed domain name is parked at a landing page that offers the disputed domain name for sale and displays an advertisement for a commercial service affiliated with the Registrar. The Panel does not consider that this use constitutes a bona fide offering of goods or services that would create a right or legitimate interest in the disputed domain name for the purposes of the Policy. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267. Accordingly, the Panel does not find that the Respondent’s use falls within the first circumstance of paragraph 4(c) of the Policy.
As regards the second circumstance, the Respondent’s name is “Reap usd”, not “virgin-atlantic” nor “virgin” nor “atlantic”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.
As regards the third circumstance, the offering of a domain name for sale and the advertising of a commercial service do not constitute a legitimate non-commercial or fair use. Accordingly, the Panel does not find that the Respondent’s use falls within the third circumstance of paragraph 4(c) of the Policy.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not respond to the Complaint and hence failed to rebut the Complainant’s case.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances, without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
“(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] web site 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] web site or location or of a product or service on [the Respondent’s] web site or location.”
The Respondent registered the disputed domain name in 2015, many years after the Complainant obtained its trademark registration. All the top search results for the terms “virgin-atlantic” and “virgin atlantic” in the Baidu Internet search engine point to the Complainant and its services. The disputed domain name wholly incorporates the Complainant’s VIRGIN ATLANTIC trademark, only substituting a hyphen for the space between the terms and adding no additional element besides the gTLD suffix. There is no apparent connection between the terms “Virgin” and “Atlantic” other than to serve as the Complainant’s trademark. The Respondent offers no alternative explanation for its choice of the disputed domain name. This all gives the Panel reason to believe that the Respondent was aware of the Complainant’s VIRGIN ATLANTIC trademark at the time that it registered the disputed domain name and chose to register it in the disputed domain name in bad faith.
The Respondent uses the disputed domain name, which is confusingly similar to the Complainant’s VIRGIN ATLANTIC trademark, to park it at a landing page that offers the disputed domain name for sale and displays an advertisement for a commercial service affiliated with the Registrar. Customers searching for the Complainant’s VIRGIN ATLANTIC brand services may be attracted to this webpage where they will see the advertisement. This use is intentional and for the commercial gain of the Registrar, if not for the Respondent’s own commercial gain. In either scenario, these facts satisfy the requirements of paragraph 4(b)(iv) of the Policy. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, supra. Further, the Respondent provided incomplete contact information to the Registrar which prevents it from being located, which is further evidence of bad faith.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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.
Matthew Kennedy
Sole Panelist
Date: January 12, 2017
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