WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Virgin Enterprises Limited v. Isabelle Gillard
Case No. D2015-0244
1. The Parties
The Complainant is Virgin Enterprises Limited of London, United Kingdom Great Britain and Northern Ireland ("United Kingdom"), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Isabelle Gillard of Quimper, France.
2. The Domain Name and Registrar
The disputed domain name <virqinone.com> is registered with Domain.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 16, 2015. On February 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2015, 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. In response to an email by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on February 24, 2015.
The Center verified that the Complaint and 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 March 6, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 30, 2015.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on April 13, 2015. 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 in this proceeding is Virgin Enterprises Limited, hereinafter referred to as "Virgin" or "the Complainant". The Complainant is also the brand owner for the Virgin Group of Companies. Created in 1970, the Virgin Group of Companies now comprises over 200 companies operating worldwide.
The Complainant has proven that the trademark VIRGIN enjoys thorough protection with many registrations worldwide for a wide range of products and services.
The Complainant is also the holder of UK trademark VIRGIN ONE reg. no. UK00002160001 registered on August 21, 1998.
Additionally, the Complainant has owned and operated the website "www.virginone.com" since 1998.
The Complainant's trademarks long predate the registration of the disputed domain name and have become internationally well-known.
The disputed domain name <virqinone.com> was registered on September 26, 2012.
The disputed domain name at present resolves to a website that apparently is suspended owing to a separate action taken to address the suspected fraudulent activity which was taking place therein.
Whereas it results, from the evidence provided by the Complainant, that at an earlier date the disputed domain name resolved to a website which presented a direct copy of the content displayed on the official website of the Complainant. The VIRGIN trademark was clearly displayed on this website.
5. Parties' Contentions
The Complainant claims that the disputed domain name, this being a typo-squatting case, is almost identical to the Complainant's VIRGIN ONE registered trademark; that the Respondent has no rights or legitimate interests whatsoever with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith. The Complainant further points out that the disputed domain name's registration (and use) is an "extreme example" of bad faith registration and use as it appears that the Respondent was using consumers' trust in the VIRGIN brand in order to fraudulently obtain consumers' banking information.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In order for the Complainant to obtain a transfer of the disputed domain name, paragraphs 4(a)(i) – (iii) of the Policy require that the Complainant must demonstrate to the Panel that:
(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 Complainant has established rights in the VIRGIN and VIRGIN ONE trademarks.
The only difference between the disputed domain name, <virqinone.com> and the Complainant's VIRGIN ONE trademark is the replacement of the letter "g" in Virgin with the letter "q" in Virqin. This Panel agrees with the Complainant's assertions that when included in the lower case format of a domain name the letter q looks visually similar to the letter g amplifying the likelihood of confusion; and that the disputed domain name would be associated with the Complainant's trademarks and activity.
The Panel finds the disputed domain name to be confusingly similar to the trademark VIRGIN ONE in which the Complainant has rights.
Consequently, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
This Panel finds that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent has no connection or affiliation with the Complainant, and the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant's trademark. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services for the reasons described in section 6.C below. In addition, the Respondent does not appear to be commonly known by the name "virqin one" or by a similar name. Moreover, the Respondent has not replied to the Complainant's contentions, alleging any rights or legitimate interests in the disputed domain name.
Finally, this Panel agrees with the previous panel's finding in Calvin Klein Trademark Trust and Calvin Klein Inc. v. Wang Yanchao, WIPO Case No. D2014-1413, that "the Complainant and its CALVIN KLEIN marks enjoy a widespread reputation and high degree of recognition as a result of its fame and notoriety in connection with men's and women's apparel, fragrances, accessories, and footwear products and is a registered trademark in many countries all over the world. Consequently, in the absence of contrary evidence from the Respondent, the CALVIN KLEIN marks [are] not one[s] that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant".
The same concept applies to the present case: the VIRGIN and VIRGIN ONE marks are not trademarks that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Considering that the Complainant's trademarks are renowned trademarks that have been registered and used for several decades and thus long predate the disputed domain name's registration, and in the absence of contrary evidence, the Panel finds that the Respondent knew of the Complainant's services and trademarks and deliberately intended to create an association with the Complainant and its business; that the Respondent must have had actual knowledge of the Complainant's trademarks at the time of the registration of the disputed domain name; and that the above described use of the disputed domain name, i.e.,to divert Internet traffic to the Respondent's website where a clear copy of the contents presented on the Complainant's official website is displayed in order to obtain consumer banking information, falls within the example of bad faith set out in paragraph 4(b)(iv) of the Policy: "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location."
Moreover, the Panel agrees with the Complainant in finding that it appears that the Respondent was using the disputed domain name to fraudulently obtain consumers' banking information by requesting them to input their bank details through a misrepresentation of the Official Virgin One site.
Accordingly, the Panel finds on the basis of the evidence presented, that the Respondent registered and is using the disputed domain name in bad faith.
Therefore, the Complainant has satisfied paragraph 4(a)(iii) of the Policy
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, <virqinone.com> be transferred to the Complainant.
Date: April 23, 2015