The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Burges Salmon LLP, United Kingdom.
The Respondent is Registration Private, Domains by Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Name Redacted.1 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 31, 2018. On January 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 1, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 2, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 7, 2018.
The Center verified that the Complaint together with the amended 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 February 16, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 8, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2018.
The Center appointed Jonas Gulliksson as the sole panelist in this matter on March 19, 2018. 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 part of the Virgin Group and owner and manager of the VIRGIN trademarks and brand.
The Complainant is the proprietor of inter alia the following trademark registrations:
European Union Trademark Registration No. 011991882, registered on December 10, 2013 for the word mark VIRGIN for goods and services in classes 1, 2, 4, 6, 7, 8, 10, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 34, 37 and 40;
European Union Trademark Registration No. 004756921, registered on January 18, 2007 for the word mark VIRGIN GALACTIC for goods and services in classes 12, 16, 25, 28 and 39.
The disputed domain name was registered on January 15, 2018 and resolves to an inactive webpage. 5. Parties’ Contentions A. Complainant
The Complainant mainly alleges the following.
The Virgin Group, of which the Complainant is part, is engaged in a diverse range of business sectors such as Travel & Leisure, Telecoms & Media, Music & Entertainment, Financial Services, and Health & Wellness.
Virgin Galactic is a spaceflight company within the Virgin Group. The company is currently in the process of developing commercial spacecraft and aims to provide the world’s first commercial spaceline.
The disputed domain name is identical and/or confusingly similar to the Complainant’s trademarks. The disputed domain name incorporates the Complainant’s VIRGIN and VIRGIN GALACTIC trademarks in full, save that it omits the first letter “c” in the word “galactic” (i.e. “galatic”) and includes the generic Top-Level Domain (“gTLD”) “com”.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no information to suggest a legitimate right to use the Complainant’s VIRGIN and VIRGIN GALACTIC trademarks by the Respondent. Further, nothing suggests that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. To the contrary, the website hosted at the disputed domain name currently resolves to a webpage displaying an “Unknown Host” error message.
The disputed domain name has been used as part of an email scam. The Complainant has recently been notified of an instance of fraudulent emails sent from an email address associated with the disputed domain name (m.murphy@). The emails in question were purportedly sent on behalf of “[M] Murphy”, on behalf of Virgin Orbit, LLC (which is the newest member of the Virgin Group of companies; the company was formed in 2017 to provide launch services for small satellites). The scam was intended to defraud the targeted organization into corresponding with the sender in connection with a sham business order in the belief that the recipient was, in fact, dealing with Virgin Orbit (and/or a representative of Virgin Galactic), when that was not the case. Neither “[M] Murphy”, the disputed domain name, nor the email addresses from which the email correspondence was sent are in any way connected with the Complainant, Virgin Orbit, Virgin Galactic, or the Virgin Group.
The email scam was designed to mislead the recipient into believing that they were corresponding with a representative of Virgin Orbit and/or Virgin Galactic when this is not the case. The Respondent, by using the disputed domain name to register an email account which looks to be affiliated with Virgin Orbit and/or Virgin Galactic, has intentionally attempted to create a likelihood of confusion with the Complainant’s VIRGIN and VIRGIN GALACTIC trademarks as to the source of the email scam. The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant.
Against this background the Complainant considers that the disputed domain name was registered and is being used in bad faith by the Respondent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name contains the trademark VIRGIN in its entirety and save one missing letter, “c”, it also contains the trademark VIRGIN GALACTIC with the addition of the gTLD “.com”. It is well established among UDRP panels that the gTLD “.com” is not distinguishing. Both of the afore-mentioned trademarks are registered trademarks owned by the Complainant. The omission of the letter “c” is not sufficient to distinguish the distinguishing part of the disputed domain name from the Complainant’s trademark VIRGIN GALACTIC.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s VIRGIN GALACTIC trademark and that the first requirement of the policy is fulfilled. B. Rights or Legitimate Interests
In cases when a Respondent fails to present a response, the Complainant is still required to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
For the reasons discussed at 5.A, the Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not shown otherwise. The Panel therefore finds the requirements of the second element of the Policy fulfilled. C. Registered and Used in Bad Faith
The Complainant’s registered trademarks VIRGIN and VIRGIN GALACTIC predate the disputed domain name and it is not probable that the Respondent registered the disputed domain name without knowledge of the Complainant and its trademarks. The circumstances presented by the Complainant and the submitted supporting evidence regarding an email scam with use of the disputed domain name supports a finding of bad faith. The Panel therefore finds that the third requirement of the Policy is fulfilled. 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.
Jonas Gulliksson
Sole Panelist
Date: April 2, 2018
1 It appears that the disputed domain name has been fraudulently registered using the name of an employee of the Complainant. The Panel has determined that no purpose can be served by including the named Respondent in this Decision, and has therefore redacted the Respondent’s name from the caption and body of this Decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar to transfer the disputed domain name that includes the named Respondent, and has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy, and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published due to exceptional circumstances.
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