WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Virgin Enterprises Limited v. Richard Nani, franco Resources plc
Case No. D2016-0659
1. The Parties
The Complainant is Virgin Enterprises Limited of United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Richard Nani, franco Resources plc of Alispell, Montana, United States of America.
2. The Domain Name and Registrar
The disputed domain name <virginatlancticflights.com> (the "Domain Name") is registered with OnlineNic, Inc. d/b/a China-Channel.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 5, 2016. On April 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 6, 2016, 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.
The Center verified that the 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 proceeding commenced on April 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 1, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 2, 2016.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on May 6, 2016. 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 following facts are undisputed.
The Complainant is the brand owner for the Virgin Group of Companies. The Virgin Group originated in 1970 when Richard Branson began selling music records under the Virgin name and since that date it has expanded into a wide variety of business. As a result, the Virgin Group now comprises over 200 companies worldwide operating in 32 countries including throughout Europe and the United States of America. The number of employees employed by the Virgin Group of Companies is in excess of 40,000, generating an annual turnover in excess of GBP 4.6 billion.
The Complainant is the owner of various trademarks consisting of or containing the word elements VIRGIN and VIRGIN ATLANTIC (hereinafter also referred together as the "Trademark") as a word mark or as a combined word/device mark.
In addition to the domain names <virgin.com> and <virginatlantic.com>, the Complainant owns in excess of 4,500 other domain names incorporating the Virgin name.
The Domain Name <virginatlancticflights.com> was registered on August 31, 2015.
5. Parties' Contentions
Insofar as relevant, the Complainant contends the following.
The Complainant owns very extensive rights in the Trademark and in addition the Complainant has also gained a significant reputation in the brand through extensive use.
When Virgin is coupled with Atlanctic Flights Complainant submits that it can have no other meaning for the public other than as a reference to the Complainant's brand, this is especially in view of the fact that the Complainant has rights in the Trademark as an airline flight provider. It is clear that the Domain Name is confusingly similar to the Trademark and the public have become accustomed to seeing Virgin Atlantic Flights as referring to the Complainant.
Bearing in mind the massive reputation of the Virgin brand and Complainant's operations in a wide range of activities since as early as 1970, there is no believable or realistic reason for registration or use of the Domain Name other than to take advantage of the Complainant's rights.
The use being made of the website behind the Domain Name demonstrates that the Respondent has not used the Domain Name, or made preparations to use the Domain Name in relation to a bona fide offering of goods or services.
The Domain Name registration does not reflect the Respondent's name in any way, the Respondent is not commonly known by the name Virgin Atlantic Flights and does not own any rights in this name.
This is a classic example of a typosquatting Domain Name and it is apparent that it has been registered in bad faith. The Respondent is exploiting the domain name registration by impersonating Richard Branson, using the email address […]@virginatlancticfligts.com, an email account which the Respondent only has access to as a result of this domain name registration. The Respondent is using the Domain Name to approach business owners, suggesting that he wants to purchase their company, under the pretense of being Richard Branson, the founder of Complainant.
The Domain Name has been acquired for the purpose of selling the Domain Name to the Complainant at some point in the future. It is clear that the Respondent intends to sell the Domain Name for money in excess of its documented out of pocket expenses. The Respondent would likely assume that in finding out about the fraudulent activity, such as this, the Complainant would offer to buy the Domain Name to stop the activity.
It is clear that the Domain Name has been registered for the purpose of disrupting the business of the Complainant and is therefore a bad faith registration. The email address associated with the Domain Name registration is being used to intentionally mislead the Complainant's customers. By impersonating Richard Branson the Respondent is giving the impression that the Respondent is a legitimate enterprise who legitimately wants to purchase their business. This quite simply is not the case, the business owners are being intentionally mislead by the Respondent who has absolutely no intention of buying their business and is merely trying to access to their personal information and money. This is a clearly fraudulent activity and it is damaging the good name and reputation of the Complainant's business who does not wish to be associated with this kind of activity.
It is clear that the Domain Name has been registered in order to prevent the Complainant owning the Domain Name and the Respondent is engaged in a pattern of such behavior as the Respondent was also the respondent in Virgin Enterprises Limited v. Richard Nani, Franco Resources plc, WIPO Case No. D2015-1412 and Monarch Airlines Limited v. Richard Nani, WIPO Case No. D2012-2484.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the Domain Name registered by the Respondent 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 Domain Name; and
(iii) the Domain Name registered by the Respondent has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name incorporates the Trademark element VIRGIN ATLANTIC in its entirety; the only difference is the mere adjunction of the letter "c" and the descriptive element flights.
In Canadian Tire Corporation Limited v. Swallowlane Holdings Ltd., WIPO Case No. D2009-0828, the panel found that "the mere addition of one letter can be defined as a case of 'typosquatting', namely a conduct that aims at reaching Internet users that would misspell the name of a certain domain name […]. If it was not for the adjunction of the letter 't', the domain name would be identical to the Complainant's trademark".
Moreover, the Panel also takes into account that people considering the Domain Name without awareness of its content may believe that the Domain Name is in some way connected and associated with the Complainant (see Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, WIPO Case No. D2004-0206; CBS Broadcasting Inc., f/k/a CBS Inc v. Nabil Z. aghloul, WIPO Case No. D2004-0988).
Finally, with regards to the suffix ".com" (which indicates that the Domain Name is registered in the ".com" generic Top-Level Domain (gTLD)), as it was established in many previous UDRP decisions (see A.P. Møller v. Web Society, WIPO Case No. D2000-0135; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Arab Bank for Investment And Foreign Trade (ARBIFT) v. Mr. Kenn Wagenheim / firstname.lastname@example.org, WIPO Case No. D2000-1400; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447; and Crédit Industrile et Commercial S.A v. Name Privacy, WIPO Case No. D2005-0457), it does not generally affect the analysis under the first element of the Policy for the purpose of determining whether it is identical or confusingly similar; indeed the suffix is a necessary component of the domain name and does not give any distinctiveness.
Thus, the Panel finds that the Domain Name is confusingly similar to the Trademark.
For all the foregoing reasons, the Panel finds that the Complainant has met its burden under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant's contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the Domain Name, such as:
(i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name.
The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that Virgin Atlantic is the Respondent's name or that the Respondent is commonly known as Virgin Atlantic. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant and that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Complainant's marks, or to apply for or use any domain name incorporating any of the trademarks.
Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
Finally, given the circumstance of this case, the Panel finds that the Respondent's lack of rights or legitimate interests in the Domain Name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions "non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one's own rights" (see GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005-0090; and Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493).
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
The Panel finds that the Domain Name was registered and is being used in bad faith.
In light of the evidence filed by the Complainant and the absence of a reply, the Panel finds that the Complainant's trademarks and activities are well-known throughout the world. Accordingly, in the Panel's view, the Respondent must have been aware of the Complainant's existence and rights when it registered the Domain Name. This is emphasized by the fact that the Domain Name is being used to intentionally mislead the Complainant's customers. By using the email address […]@virginatlancticflights.com and impersonating Richard Branson the Respondent is giving the impression that Respondent is a legitimate enterprise who legitimately wants to purchase their business. In doing so, the Respondent is disrupting the Complainant's business.
Additionally, the Panel also finds that this behavior of the Respondent fits the example of paragraph 4(b)(iv) of the UDRP, i.e., that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 the Respondent's web site or location or of a product or service on the Respondent's web site or location.
Moreover, the Domain Name does not resolve to an active website.
Although the lack of a reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use of the Domain Name by the Respondent is in bad faith.
In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the Domain Name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <virginatlancticflights.com> be transferred to the Complainant.
Willem J. H. Leppink
Date: May 12, 2016