World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Virgin Enterprises Limited v. Trade Out Investments Ltd/Power Brand Centre Corp.

Case No. D2011-0640

1. The Parties

The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Ipulse, United Kingdom.

The Respondent is Trade Out Investments Ltd of Miranda, Bolivarian Republic of Venezuela; Power Brand Centre Corp of Panama.

2. The Domain Name and Registrar

The disputed domain name <virginatlanticcargo.com> is registered with Power Brand Center Corp.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 11, 2011. On April 12, 2011, the Center transmitted by email to Power Brand Center Corp. a request for registrar verification in connection with the disputed domain name. On the same day, Power Brand Center Corp. 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 April 15, 2011 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 April 19, 2011.

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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 21, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 11, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 12, 2011.

The Center appointed Richard Hill as the sole panelist in this matter on May 17, 2011. 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 has numerous registered trademarks for the terms VIRGIN and VIRGIN ATLANTIC. Those marks are used extensively around the world to promote a variety of products and services. The marks are very well-known around the world.

The Respondent is using the disputed domain name to point to a web site containing links to products and services that directly compete with those of the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that it owns very extensive rights in the marks VIRGIN and VIRGIN ATLANTIC including numerous registered trademarks in various countries for various product categories. The Complainant’s mark is very well-known and the Complainant now comprises over two hundred companies worldwide, operating in 32 countries, including throughout Europe and the United States of America, has over 40,000 employees and generates an annual group turnover in excess of 4.6 billion pounds.

According to the Complainant, it is clear that the disputed domain name is confusingly similar to its mark.

The Complainant states, and provides evidence to support its statement, that the Respondent is using the disputed domain name to point to a site containing sponsored advertising links to a number of services, including competitors of the Complainant. Such use does not establish rights or legitimate interests and it is evidence of bad faith registration and use. Indeed, the Respondent is obtaining income from the advertising links at its web site and on this basis it is clear that the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondents web site; the only intention of the disputed domain name was to generate income for the Respondent purely because of the fame and reputation of the Complainant’s famous brand.

Further, says the Complainant, bearing in mind the extent and nature of the Complainant’s reputation in the VIRGIN brand, and the extremely distinctive and unique nature of the VIRGIN trade mark, it is impossible to envisage any legitimate purpose for registering the disputed domain name, other than to capitalize or gain on the basis of the Complainant’s reputation, or to disrupt the business of the Complainant in some way.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain name consists of the Complainant’s mark with the addition of the common word “cargo”. It is therefore clear that the disputed domain name is confusingly similar to the Complainant’s mark. See MasterCard International Incorporated v. Juan Curtis, WIPO Case No. D2008-1295 (finding that the word “free” was descriptive and did not eliminate the similarity to the complainant’s mark) and Microgaming Software Systems Limited v. DomainsByProxy.com and BB1Webs, WIPO Case No. D2008-0870 (finding that the inclusion of the generic word “slots” did not add distinctive matter so as to distinguish the disputed domain name from the complainant’s mark).

B. Rights or Legitimate Interests

The Respondent is using the disputed domain name to operate a web site that contains links to various commercial web sites that compete with the Complainant. Given the confusing similarity in the names, and the fact that the disputed domain name is not a common, generic term, such use does not constitute a bona fide offering of goods or services under Policy, paragraph 4(c)(i) or a legitimate noncommercial or fair use under Policy, paragraph 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, NAF Case No. FA 888651 (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a web site containing links to various competing commercial web sites, which is neither a bona fide offering of goods or services pursuant to Policy, paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii)); see also Meyerson v. Speedy Web, NAF Case No. FA 960409 (finding that where a respondent has failed to offer any goods or services on its web site other than links to a variety of third-party web sites is not a use in connection with a bona fide offering of goods or services under Policy, paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii)).

Further, the Complainant’s trademarks are very well-known and it is difficult to conceive of any legitimate use of the disputed domain name in the circumstances.

The Panel holds that the Complainant has established its burden of proving this element of the Policy.

C. Registered and Used in Bad Faith

The Respondent is using the disputed domain name to operate a web site that provides links to various web sites offering services that compete with the Complainant’s business. The Respondent is profiting from such use through the collection of referral fees for each redirected Internet user. Such use constitutes a disruption of the Complainant’s business and is therefore evidence of bad faith registration and use pursuant to Policy, paragraph 4(b)(iii). See S. Exposure v. S. Exposure, Inc., NAF Case No. FA 94864 (finding the respondent acted in bad faith by attracting Internet users to a web site that competes with the complainant’s business); see also EBAY, Inc. v. MEOdesigns and Matt Oettinger, WIPO Case No. D2000-1368 (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).

The Panel holds that the Complainant has established its burden of proving this element 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, <virginatlanticcargo.com>, be transferred to the Complainant.

Richard Hill
Sole Panelist
Dated: May 17, 2011

 

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