The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom" or "UK"), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Vincent Battista of Lititz, Pennsylvania, United States of America ("United States" or "USA"). 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet SE (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 26, 2018. On June 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 28, 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 June 29, 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 July 2, 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 July 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 31, 2018.
The Center appointed Luiz E. Montaury Pimenta as the sole panelist in this matter on August 8, 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 Virgin Enterprises Limited, the brand owner for the "Virgin" group of companies, located in London, UK. The Complainant is a multinational company that comprises over 60 businesses worldwide, operating in 35 countries including throughout Europe, the USA and Australasia.
The Complainant is owner of several trademark registrations for VIRGIN and similar marks, in the United Kingdom (such as VIRGIN, trademark No. 1009534 registered on April 11, 1973 in class 9), and in several other countries throughout the world.
The Complainant uses the mark VIRGIN in connection with various products and services since, at least 1970, including, but not limited to, travel and leisure, telecommunications, music and entertainment, financial services, and health and wellness. In addition, the Complainant is well known for its active participation in several charitable foundations, such as Virgin Unite and Virgin Start-Up, and the activities of its founder and chairman, Sir Richard Branson.
The disputed domain name was registered on June 21, 2018. The disputed domain is currently active, but not hosting any website or service (a "404 Not Found" message was available when the Panelist attempted to check if there was any web presence at the address "www."). The disputed domain name has been used to send phishing emails in an attempt to impersonate the Complainant. 5. Parties' Contentions A. Complainant
The Complainant alleges that the disputed domain name is confusingly similar to its registered VIRGIN trademarks, due to the fact that the disputed domain is composed of the word element, "virg1n", which is fragrantly similar with the Complainant's well-known marks. The Complainant argues that the disputed domain name merely changed the 2nd letter "i" in "VIRGIN" to the number "1", which made the final result, in fact, visually similar. The Complainant understands that this slight change is an obvious example of a practice known as domain name "typosquatting".
Moreover, as the disputed domain name is comprised of the word element "virg1n" and the popular designation ".com", the Complainant claims that the visual resemblance between the number "1" and the letter "i" creates a high probability that Internet users will associate the disputed domain with the Complainant. The Complainant even presented evidence that the Respondent intentionally used the domain name in attempts to attract, for fraudulent intention, possible employees of the Complainant.
The Complainant affirms that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant indicates that the Respondent is not known by the name "Virgin" or "Virg1n" and has no trademark registrations or rights covering both word elements. The Complainant also affirms that it has not even authorized or licensed any use of its VIRGIN trademarks to the Respondent. Furthermore, the Complainant argues that the Respondent is not using the domain name in connection with any legitimate offering of goods/services.
The Complainant also argues that the Respondent is not using the disputed domain name as part of any bona fide offering of goods or services, or for legitimate noncommercial use. The disputed domain name does not lead Internet users to any website.
Furthermore, the Complainant states that the Respondent is clearly using the disputed domain name willfully, in bad faith and for fraudulent reasons, as the Complainant became aware of the existence of this domain name registration due to fraudulent emails forwarded to the Complainant's employees from the address "[…]@". Copies of the emails in question, sent on June 21, 2018, are attached to the Complaint as Annex 6.
The Complainant understands that, since the disputed domain name was registered on June 21, 2018, and the suspicious activities began subsequently after such registration, this domain has been registered only for the purposes of confusing Internet users into believing that the Respondent is associated with the Virgin group of companies. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To succeed in such type of dispute, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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.
The burden of proof regarding these elements lies solely on the Complainant. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is indeed confusingly similar to the Complainant's marks and domain names VIRGIN and . The Panelist also finds that the mere change between a letter "i" to the number "1", which are visually similar elements, does not prevent a finding of confusing similarity between the Complainant's VIRGIN trademark and the disputed domain name. Therefore, the Panel understands that the disputed domain name is, in fact, confusingly similar to several trademarks in which the Complainant has rights, and the Complainant was able to evidence those rights in its Complaint.
The Panel, therefore, concludes that the Complainant has correctly established the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
The Complainant alleged that the Respondent has no rights or legitimate interests with respect to the disputed domain name.
With respect to paragraph 4(c)(i) of the Policy, there is no evidence that the Respondent has ever used the disputed domain name in connection with a bona fide offering of goods or services.
With respect to paragraph 4(c)(ii) of the Policy, there is no evidence that indicates that the Respondent has ever been commonly known by the disputed domain name.
With respect to paragraph 4(c)(iii) of the Policy, the Respondent has not made or is not making a legitimate noncommercial or fair use of the disputed domain name.
Considering the fact that the Respondent has chosen not to file a response to the Complaint, and therefore did not provide any rebuttal to the arguments and evidence brought by the Complainant, this Panel finds that there is nothing to suggest that the Respondent has, or might have, any rights or legitimate interests in respect of the disputed domain name.
In fact, previous decisions under the Policy have found it sufficient for a complainant to make a prima facie showing of its assertion in the event of a respondent's default. See, e.g., Accor v. Eren Atesmen,WIPO Case No. D2009-0701 ("A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent") and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455 ("The Panel notes that Complainant bears the ʻgeneral burden of proofʼ under paragraph 4(a)(ii) of the Policy, which burden shifts to the Respondent once Complainant makes a prima facie showing that the Respondent lacks rights or legitimate interests").
Once such prima facie case is made, the burden of producing evidence would shift to the respondent to come forward with appropriate allegations that can demonstrate its rights or legitimate interests in the disputed domain name. However, in this case, the Respondent apparently chose not to present any arguments. Rather, the evidence of the Complainant shows that the disputed domain name has only been used in a fraudulent attempt to impersonate the Complainant.
In view of the above, as the Panel cannot find any indication of any circumstances that indicate the Respondent's rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the Complainant has fully established the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The Panel finds that the Respondent has intentionally registered the disputed domain name in bad faith. Based on all the above facts, it is likely that the Respondent was not only not aware of the Complainant's existence and trademarks, but also used the disputed domain name immediately after registration, with blatant fraudulent intent to interact with employees of the Virgin group of companies, passing on as a senior executive of the Complainant. The evidence provided by the Complainant in Annex 6 of the Complaint is, to say the least, alarming.
Even though the Respondent did not reply to the Complaint, the Respondent's fraudulent use of the disputed domain name, which began almost immediately after its registration, confirms the possibility that the disputed domain name was registered to conduct a "social engineering" attack or other type of scam. For such reasons, the Panel finds that the Respondent must have been fully aware of the Complainant's trademarks and activities when it registered the disputed domain name.
The Respondent's subterfuge for such fraudulent activity, commonly known as phishing, aims to make Internet users fall into error in relation to the origin of email communications. Many UDRP panels have held that phishing in itself establishes bad faith registration and use in the context of the Policy. See BHP Billiton Innovation Pty Ltd v. Domains By Proxy LLC / Douglass Johnson,WIPO Case No. D2016-0364.
In view of the above, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith, reason why the Panel finds that the Complainant has also established the third element of 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.
Luiz E. Montaury Pimenta
Sole Panelist
Date: August 22, 2018
Full & Egal Universal Law Academy