Complainant is Virgin Enterprises Limited, United Kingdom, represented by A.A.Thornton & Co, United Kingdom.
Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Udegbu Micheal, Prince O. Computers, Nigeria. 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 20, 2020. On July 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 20, 2020, 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 Complainant on July 21, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 22, 2020. 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 Respondent of the Complaint, and the proceedings commenced on July 31, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 20, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 10, 2020. The Center appointed Richard W. Page as the sole panelist in this matter on September 17, 2020. 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 Complainant is a member of a group of companies that are collectively known as “the Virgin Group.” The Virgin Group was originally established by its founder and Sir Richard Branson in the United Kingdom in 1970 when he started business selling popular music records by mail order under the Virgin name. Since then the operations of the Virgin Group have grown significantly. There are now over 60 VIRGIN branded businesses that span a diverse range of sectors covering financial services, health & wellness, music & entertainment, people & paint, telecommunications & media and travel & leisure, have between them over 53 million customers worldwide and employ more than 69,000 people in 35 countries. Annual revenue is GBP 16.6 billion. Complainant is responsible for registering and maintaining registrations for trademarks containing the Virgin name and Virgin signature logo and licensing these rights to the Virgin businesses. Complainant owns a substantial portfolio of approximately 3,500 trademark applications and registrations in over 150 countries, covering the majority of the 45 classes of goods and services. In particular, Complainant owns the following trademark registrations together referred to as the “VIRGIN Marks”: European Union Registration No. 1798560 VIRGIN filed on August 8, 2000 and registered on June 5, 2002 in respect of inter alia “arranging transportation of goods or persons by road, rail, air and sea; freight service; ground transportation services” in classes 9 and 39; and United States Application No. 87641469 filed on October 11, 2017 and registered in June 2018in respect of inter alia “transport of passengers and good by air, boat, rail and bus; freighting services in classes 12, 35, 37, 39 and 40; and European Union Registration No. 014030589 VIRGIN ATLANTIC registered on October 12, 2015 in classes 9 and 35. The Virgin name and Virgin signature logo have all been consistently and intensively used across all Virgin operations since the company was founded. The Virgin business, ventures and foundations are branded with marks incorporating the distinctive Virgin name or Virgin signature logo: for example, Virgin Active, Virgin Money and Virgin Media. The Disputed Domain Name was registered on July 8, 2020 and has been used in relation to a website that purports to offer logistics, cargo and freight services (the “Disputed Website”). 5. Parties’ Contentions A. Complainant Complainant contends that it has built up a considerable online presence and is the registered proprietor of over 5,000 domain names consisting of or incorporating the VIRGIN Marks. Complainant has operated a website at “www.virgin.com” since the year 2000 to promote the activities of the Virgin Group and its business, ventures and foundations. Complainant “Virgin.com” Website contain links to specific web pages for most of the companies in the Virgin Group. Complainant further contends that the Virgin businesses operate pages on various social media platforms where the VIRGIN Marks are also featured prominently. Collectively these social media platforms receive over 37 million views each year. This considerable online public following serves to demonstrate the widespread exposure of the VIRGIN brand to people all over the world and its significant global reputation. Complainant further contends that, in 1984, it launched its first passenger and cargo airline under the brands VIRGIN ATLANTIC with the aim of providing a high quality and value for money service. Complainant provides information about its Virgin Atlantic passenger and cargo services and booking facilities on its websites at “www.virginatlantic.com” and “www.virginatlanticcargo.com”. Complainant alleges that the Virgin Atlantic cargo service began between London and New York, and nowadays offers daily cargo flights to Hong Kong, China, Australia, Africa and the Caribbean, overall trading in 37 countries and flying to 60 destinations. In joint partnership with Delta Cargo, Virgin Atlantic cargo service is a leading transatlantic air cargo service providing 38 flights a day between the United States and United Kingdom carrying around 240 million kilos of cargo annually. In 2018, the Virgin Atlantic cargo business carried a quarter of all trans-Atlantic air cargo volume and reported a 13% increase in revenue to GBP 222 million. Complainant further alleges that the Virgin Atlantic passenger airline in additionally known for its exceptional quality and service, in particular the Virgin Atlantic passenger airline cabins and its revolutionary Upper Class cabin launched in 2003. The Virgin Atlantic passenger airline now operates routes from United Kingdom hubs of London Gatwick, London Heathrow and Manchester to destinations in North America, the Caribbean, Africa, the Middle East, Asia and Mexico. Complainant further alleges that as in the case through all of Complainant’s businesses and ventures, the VIRGIN Marks are placed throughout the Virgin Atlantic Websites, and on the fuselages and tailfins of its aircraft. Complainant submits that the Disputed Domain Name is comprised of the terms “virgin,” “atlantic” and “delivery” and therefore incorporates the entirety of the VIRGIN ATLANTIC Mark, and the verbal element of Complainant’s Registered VIRGIN ATLANTIC Logo Mark, in their entirety. The addition of the term “delivery” is a descriptive reference to a service of transporting goods or documents, and so refers to the services for which the VIRGIN Mark has a reputation. The term “delivery” is not sufficient to avoid confusion on the part of Internet users as it will suggests that the Disputed Domain Name provides access to the well-known Virgin Atlantic cargo services. Complainant argues that the Disputed Domain Name is confusingly similar to the VIRGIN Marks pursuant to paragraph 4(a)(i) of the Policy. Complainant further submits that the Disputed Domain Name resolves to the Disputed Website that purports of offer logistics, cargo and freight services. Respondent on the Disputed Website in numerous places identifies itself as “Virgin Atlantic,” thereby purporting to offer cargo services using the entirety of the VIRGIN ATLANTIC Mark. What appear to be profiles for purported employees of “Virgin Atlantic” on the Disputed Website are fabricated. The images of these employees, along with a number of other images included on the Disputed Website, are taken from stock image libraries. Complainant further submits that the contact details provided on the “Contact Us” page are identical to those used by another company purporting to offer courier services, Tribisham Express. A third company, Fast Courier Delivery Services, lists the same employees as both Tribisham Express and the Disputed Website. Both of these companies have nearly identical websites to the Disputed Website which appears at the Disputed Domain Name. The addresses listed for these companies appear to be bogus. There is no reference to Virgin Atlantic, Tribisham Express or Fast Courier Delivery Services at either of these addresses and it is reasonable to assume that fake address details have been provided on the Disputed Website. Complainant further submits that the circumstances and content of the Disputed Website are not typical of a website that provides a genuine legitimate business to customers. In many places the text on the Disputed Website is contradictory, for example the opening times on the top of the page contradict the opening times on the bottom of the page and the number of years the business has purportedly been operating according to the home page contradicts the information on the “About Us” page. In addition, many of the links do not resolve anywhere, this is particularly surprising in relation to the “product” and the “services” pages and the links in the footer of the Disputed Website which you would expect to also resolve to the main home page for the social platform as opposed to a corporate page for a purported business. Finally, the copyright owner on the “track order” page is named as a different company to that named as the copyright owner on the rest of the Disputed Website. On the whole, the Disputed Domain Name and the Disputed Website to which it resolves do not appear to be used in connection with a bona fide business interest. Complainant avers that there is no evidence that the Disputed Domain Name was ever been used in relation to a bona fide genuine business offering, nor that Respondent was ever known as “Virgin Atlantic.” Complainant further avers that the use of Complainant’s VIRGIN Marks as part of the Disputed Domain Name and on the Disputed Website, in connection with promotion of a purported courier service for which Complainant’s VIRGIN Marks has a reputation, will confuse Internet users searching for, and divert prospective customers away from, Complainant’s genuine air cargo service. Customers of Complainant who need to visit the Virgin Atlantic Websites may end up on the Disputed Website and consequently be unable to locate the information they need. In addition, there is a “Contact Us” form on the Disputed Website. Internet users may complete this form and provide their personal and sensitive data, which could then be used for fraudulent purposes. Complainant argues that Respondent does not have rights or legitimate interests in the Disputed Domain Name and that paragraph 4(a)(ii) is satisfied. Complainant alleges that Respondent had actual and constructive knowledge of Complainant’s VIRGIN Marks and brands at the time of registering the Disputed Domain Name in July 2020. Respondent therefore intentionally registered the Disputed Domain Name using Complainant’s VIRGIN Marks in connection with a purported business offering a type of service that Complainant also offers, and has a reputation for, under the VIRGIN Marks. This has been done to attract visitors to the Disputed Website and will create a likelihood of confusion for Internet users, and deceive them into believing that the Disputed Domain Name is connected to, authorized or endorsed by Complainant. Complainant further alleges that the nature of the use of the Disputed Website in not in good faith, will be disruptive to Complainant’s business and will tarnish the reputation of Complainant’s VIRGIN Marks. It is highly likely that the Disputed Domain Name is not being used in connection with a genuine business. The Disputed Domain Name has therefore been registered and is being used in bad faith, and therefore falls under paragraph 4(a)(iii) of the Policy. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall 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.” Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Paragraph 4(a) of the Policy directs that Complainant must prove each of the following: i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to the VIRGIN Marks in which Complainant has rights; and ii) that 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 Complainant owns numerous registrations together referred to as the “VIRGIN Marks,” including without limitation: the European Union registration No. 1798560 VIRGIN registered on June 5, 2002 in respect of inter alia “arranging transportation of goods or persons by road, rail, air and sea; freight service; ground transportation services” in classes 9 and 39.; and the European Union registration No. 014030589 VIRGIN ATLANTIC registered on October 12, 2015. Section 1.2.1 of the WIPO Overview 3.0 states that registration of a trademark is prima facie evidence of Complainant having enforceable rights in the VIRGIN Marks. The Panel finds that Complainant has enforceable rights in the VIRGIN Marks for purposes of this proceeding. Complainant contends that the Disputed Domain Name is identical with and confusingly similar to the VIRGIN Marks pursuant to paragraph 4(a)(i) of the Policy. See section 1.7 of the WIPO Overview 3.0 says that inclusion of the entire trademark in a domain name will be considered confusingly similar. Also see section 1.8 of the WIPO Overview 3.0 instructs that the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not prevent a finding of confusing similarity. Also see section 1.11.1 of the WIPO Overview 3.0 instructs that generic Top-Level Domains (“gTLDs”) such as “.com” may be disregarded for purposes of assessing confusing similarity. Complainant submits that the Disputed Domain Name is comprised of the terms “virgin,” “atlantic” and “delivery” and therefore incorporates the entirety of the VIRGIN ATLANTIC Mark, and the verbal element of Complainant’s registered VIRGIN ATLANTIC Logo Mark (European Union Reg. No. 014030589, registered on October 12, 2015), in their entirety. The addition of the term “delivery” does not avoid a finding of confusing similarity under the first element. Respondent has not contested Complainant’s allegations and the Panel finds that the Disputed Domain Name is confusingly similar to the VIRGIN Marks pursuant to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy. Section 2.1 of the WIPO Overview 3.0 states that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Name. If Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. The Policy paragraph 4(c) allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Name: (i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Disputed Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are 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 VIRGIN Marks. Complainant submits that the Disputed Domain Name resolves to the Disputed Website that purports of offer logistics, cargo and freight services. Respondent has posted profiles and images of fake employees, lists companies with bogus addresses and contradictory contact information. Complainant alleges that the Disputed Domain Name and the Disputed Website to which it resolves do not offer bona fide goods or services and do not offer legitimate noncommercial or fair use content. Complainant avers that there is no evidence that Respondent was ever known as “Virgin Atlantic.” The Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the Disputed Domain Name. Respondent has not rebutted Complainant’s prima facie showing. Therefore, the Panel finds that Respondent has shown the required elements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant contends that Respondent registered and is using the Disputed Domain Names in bad faith in violation of paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of the Disputed Domain Name: (i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the VIRGIN Marks or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or (ii) you [Respondent] have registered the Disputed Domain Name in order to prevent the owner of the VIRGIN Marks from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Disputed Domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with Complainant's VIRGIN Marks as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product. Complainant alleges that Respondent had actual and constructive knowledge of Complainant’s VIRGIN Mark and brands at the time of registering the Disputed Domain Name on July 8, 2020. Respondent therefore intentionally registered the Disputed Domain Name using Complainant’s VIRGIN Marks in connection with a purported business offering a type of service that Complainant also offers, and has a reputation for, under the VIRGIN Marks. This has been done to attract visitors to the Disputed Website and will create a likelihood of confusion for Internet users, and deceive them into believing that the Disputed Domain Name is connected to, authorized or endorsed by Complainant. Respondent has failed to contest these allegations. The Panel finds that Complainant has established the elements of paragraph 4(b)(iv) of the Policy. Therefore, Complainant has demonstrated bad faith as require by 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 Richard W. Page
Sole Panelist
Date: October 4, 2020
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