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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Virgin Enterprises Limited v. WhoIsGuard Protected / Yves Aya

Case No. D2019-1142

1. The Parties

Complainant is Virgin Enterprises Limited, United Kingdom, represented by A. A. Thornton & Co, United Kingdom.

Respondent is WhoIsGuard Protected, Panama / Yves Aya, Cameroon.

2. The Domain Name and Registrar

The disputed domain name, <virginattlanticairwaystravel.com>, is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2019. On May 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 17, 2019, 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 May 21, 2019 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 May 24, 2019.

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, together with the amended Complaint, and the proceedings commenced on May 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2019. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 18, 2019.

The Center appointed Steven L. Snyder as the sole panelist in this matter on June 27, 2019. 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

In 1970, a young Englishman named Richard Branson founded his first business. He soon adopted the VIRGIN mark, established a wide variety of new businesses, and went on to great commercial success. Now he is a billionaire known as Sir Richard Branson who leads a business empire that has more than 60 businesses, 69,000 employees, annual revenues of 16.6 billion pounds, and 53 million customers worldwide.

One of the VIRGIN-branded businesses is an airline which operates under the VIRGIN ATLANTIC mark. This has been in business since 1984, transporting both passengers and cargo. Complainant has registered VIRGIN ATLANTIC in various jurisdictions in which it conducts business. See, e.g., European Union Registration No. 14030589 (VIRGIN ATLANTIC for, among other services, “consultancy services relating to travel and tourism”); and United States Registration No. 2808270 (VIRGIN ATLANTIC for, inter alia, “transportation of and arranging transportation of goods and passengers by road and air”). The numerous registrations for VIRGIN ATLANTIC are among 3,500 trademark applications and registrations which Complainant has filed or obtained in more than 150 jurisdictions.

In addition to its vast trademark portfolio, Complainant has registered more than 5,000 domain names consisting of or incorporating the VIRGIN mark. Among that stable of domain names are numerous ones which contain the VIRGIN ATLANTIC mark, including <virginatlanticairways.co.uk>, <virgnatlanticairways.com> and <virginatlanticairways.net>. Complainant’s “www.virginatlantic.com” website promotes the VIRGIN ATLANTIC airline, the VIRGIN ATLANTIC credit card and offers visitors the chance to book flights, check in for their flights, and determine their flight status.

Respondent registered the disputed domain name, <virginattlanticairwaystravel.com>, on March 14, 2019. The website linked to the disputed domain name initially appeared to offer flight booking services and job positions at Virgin Atlantic.

5. Parties’ Contentions

A. Complainant

Complainant argues that the disputed domain name, <virginattlanticairwaystravel.com>, is confusingly similar to the VIRGIN ATLANTIC mark in which Complainant has long ago established rights via global usage and registrations. The addition of “airways travel” to VIRGIN ATLANTIC does not ease the confusion, given that the VIRGIN ATLANTIC mark is used in connection with the sale of airways travel services. Moreover, Complainant’s website bears a copyright notice in the name of “Virgin Atlantic Airways Ltd”. The fact that Respondent has inserted an extra “T” into the word “Atlantic” also does detract from the confusing similarity.

The second argument made by Complainant is that Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent has used the disputed domain name to lead viewers to a website in which Complainant’s VIRGIN ATLANTIC mark is widely used. Much of the content on Respondent’s website is also lifted from Complainant’s website. Complainant maintains this usage of its mark and copyrighted material was done without its authorization. This illegitimate use of the VIRGIN ATLANTIC mark, Complainant argues, does not create in Respondent a legitimate interest or rights in the disputed domain name. Another point Complainant makes is that there is no evidence that Respondent is commonly known by the VIRGIN ATLANTIC mark.

Finally, Complainant argues that the disputed domain name was registered and is being used in bad faith. Respondent registered the disputed domain name long after the VIRGIN ATLANTIC became famous; Respondent was clearly aware of Complainant’s mark and the products and services with which the VIRGIN ATLANTIC mark is used. That is shown by the fact that the disputed domain name is confusingly similar to Complainant’s mark and is linked to a website that features unauthorized copies of content from Complainant’s copyrighted website.

Based on the three arguments outlined above, Complainant asks that the disputed domain name be transferred to its ownership.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Complainant’s arguments closely track the three elements which the Policy requires be established in order to prevail in this proceeding: A disputed domain name which is confusingly similar to a mark in which a complainant has rights, the respondent’s lack of rights or legitimate interests in the disputed domain name, and evidence of bad faith in the respondent’s registration and use of the disputed domain name. See paragraph 4(a) of the Policy.

A. Identical or Confusingly Similar

Through decades of widespread use and numerous registrations in various jurisdictions, Complainant has established strong and protectable rights in the VIRGIN ATLANTIC mark. There is no reason to debate whether the disputed domain name, <virginattlanticairwaystravel.com>, is confusingly similar to Complainant’s VIRGIN ATLANTIC mark, which is used in connection with airways travel. It obviously is – at least to this Panel. See American Automobile Association, Inc. v. Cameron Jackson/PrivacyDotLink Customer 2440314, WIPO Case No. D2016-1671 (“Adding a generic term is not sufficient to escape a finding of confusing similarity and does not change the overall impression of the disputed domain name as being connected to the Complainant’s trademark”).

The fact that an extra “T” is present in the disputed domain name does not ease the confusing similarity - particularly when it so easy to overlook. See Sanofi, Genzyme Corporation v. Domain Privacy, WIPO Case No. D2016-1193 (“There is a consensus view among UDRP panels that a domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name”.

Complainant has established the first element mandated by the Policy.

B. Rights or Legitimate Interests

Respondent has not bothered to respond to the Complaint and it is hard to imagine a winning argument which he could have made. While some unauthorized uses of another person’s mark may be considered legitimate, such as in connection with scholarship or criticism, there is no justification for the use of another person’s mark to confuse and mislead consumers for commercial gain. See Richemont International SA v. brandon gill, WIPO Case No. D2013-0037(“The Panel concludes that the Domain Name has been employed as a means of improperly diverting Internet customers. In those circumstances, it is difficult to see how Respondent’s conduct could be characterized as legitimate and thus permissible”).

Misleading consumers is what Respondent has done with the disputed domain name – he has led consumers to a website that misappropriates both Complainant’s registered trademark and Complainant’s copyrighted website content. On Respondent’s ersatz website, he apparently attempts to wriggle personal information out of the unsuspecting visitors through the false advertisement of jobs with Complainant. Presumably he has done this in order to profit.

Complainant has established the second element mandated by paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Respondent registered a confusingly similar domain name and linked it to a website that, for commercial gain, blatantly copied Complainant’s own website, many years after Complainant’s Trademark became widely known. A finding of bad faith registration and usage is amply supported by the uncontroverted evidence. See LEGO Juis A/S v. Domains by Proxy, Inc., DomainsByProxiy.com / DBA David Inc., WIPO Case No. D2011-1839 (“the circumstances of this case lead the Panel to consider that the Respondent was aware of the Complainant’s Trademark and of its corresponding toys and games and thus registered the Disputed Domain Names and uses them in bad faith in order to attract Internet users by creating a likelihood of confusion with the Complainant’s Trademark for the Respondent’s commercial gain”).

Complainant has established the third element mandated by 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, <virginattlanticairwaystravel.com>, be transferred to Complainant.

Steven L. Snyder
Sole Panelist
Date: July 10, 2019

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