WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Virgin Enterprises Limited v. Michelle Grand

Case No. D2018-2062

1. The Parties

The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Stobbs IP Limited, United Kingdom.

The Respondent is Michelle Grand of Paris, France.

2. The Domain Name and Registrar

The disputed domain name <virginatlancticflight.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2018. On September 10, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 11, 2018, 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 the Complainant on September 11, 2018, 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 September 14, 2018.

The Center verified that the Complaint and 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 the Respondent of the Complaint, and the proceedings commenced on September 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 7, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 8, 2018.

The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on October 16, 2018. 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 Virgin Group was initially set up by Richard Branson in the United Kingdom in 1970 and comprises nowadays over 60 businesses worldwide, operating in 35 countries.

It possesses many valid registrations for its VIRGIN and VIRGIN ATLANTIC (e.g. EUIPO Registration No. 014030589; registered on October 12, 2015). Both trademarks have an extensive reputation and are well-known.

The disputed domain name, <virginatlancticflight.com>, is owned by the Respondent and was registered on May 16, 2018. The disputed domain name resolved to a webpage that seems to be the official site of the Complainant. However, today it is inactive.

5. Parties’ Contentions

A. Complainant

The Complainant alleges to be the owner of the VIRGIN and VIRGIN ATLANTIC trademarks in multiple jurisdictions. The disputed domain name <virginatlancticflight.com> comprises the VIRGIN ATLANTIC trademark typosquatted by the inclusion of the letter “c” ahead of the letter “t” and the addition of the “flight” term. Besides, such a practice is not to be acknowledged by the Internet user since it does not serve to create an overall different impression.

The term “flight” is merely descriptive of the airline service which the Complainant provides. Therefore, the Complainant asserts that there is a risk of a likelihood of confusion, because it reinforces a false connection with the Complainant’s core business. The Complainant produced a number of successful UDRP decisions where VIRGIN and VIRGIN ATLANTIC were found to be well-known and that a likelihood of confusion did exist in relation to the corresponding disputed domain names.

With regard to the second element, the Complainant asserts that it has not authorized the use of its VIRGIN or VIRGIN ATLANTIC trademarks by the Respondent. Further, the Respondent is not known by the term “virgin” or “virgin atlantic”. The Complainant also argues that the Respondent is not using the disputed domain name in connection with a legitimate offering of goods/services. Therefore, the Respondent has no right or legitimate interest in the disputed domain name.

Regarding to the third requirement, the Complainant alleges that the Respondent was aware of the Complainant on the date on which the disputed domain name was registered. The disputed domain name has been used to impersonate the Complainant and fraudulently obtain personal information and money from third parties. Indeed, the Respondent emailed a member of the public using a fraudulent email address, as such [email protected], and directed to contact the General Counsel of the Virgin Group. Such email has never been authorized by the Complainant. Further, the disputed domain name redirected to a website that mirrored the official site of the Complainant. Accordingly, the Complainant concludes that the registration and used of the disputed domain name was in bad faith.

B. Respondent

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

6. Discussion and Findings

In order for the Panel to decide to grant the remedy of transfer of the disputed domain name to the Complainant, it is necessary that the Complainant proves, as required by paragraph 4(a) of the Policy, that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate.

A. Identical or Confusingly Similar

To the Panel’s satisfaction, the Complainant has established accurate trademark rights on VIRGIN and VIRGIN ATLANTIC. These rights were established by the use and through the extensive portfolio of registrations in a number of jurisdictions. The Panel accepts that the VIRGIN and VIRGIN ATLANTIC are recognizable since they are reproduced in the disputed domain name. The addition of the term “flight” does not provide distinctiveness to the disputed domain name. See Florida National University, Inc. v. Registration Private, Domains By Proxy, LLC / Toby Schwarzkopf,WIPO Case No. D2017-0138. Under these circumstances the inclusion of the letter “c” is to be deemed a typosquatting rather than an innovative term where the risk of confusion is at stake.

Further, it is well established in decisions under the UDRP that indicators for generic Top-Level Domains (“gTLDs”) are typically irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.

Accordingly, the first requirement is met under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(a)(ii) of the Policy, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the disputed domain name. Indeed, the Complainant has not authorized the Respondent the use of its VIRGIN or VIRGIN ATLANTIC trademarks, nor is the Respondent known by the term “virgin” or “virgin atlantic”, neither does the Respondent have trademark rights on such terms and, the disputed domain name is not used in connection with a legitimate offering of goods/services.

The Panel also notes that the earlier use of the disputed domain name impersonating the Complainant does not provide a right or legitimate use. Likewise the phising practice in which the Respondent expected to obtain personal information and money from third parties is an illegitimate undertaking.

According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.: “[W]here a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name”. However, the Respondent did not file an answer to the Complaint. Thus, the Respondent did not come forward with such appropriate allegation or evidence before the Panel.

The Complainant has therefore demonstrated that the Respondent lacks rights or legitimate interests in the disputed domain name to the satisfaction of the Policy, paragraph 4.

C. Registered and Used in Bad Faith

The VIRGIN and VIRGIN ATLANTIC trademarks enjoy substantial fame as a result of extensive and long use. These trademarks are well-known trademarks for the purpose of the UDRP. See Virgin Enterprises Limited v. George Kwesivic, WIPO Case No. D2017-0997; Virgin Enterprises Limited v. Trade Out Investments Ltd/Power Brand Centre Corp., WIPO Case No. D2011-0640; Virgin Enterprises Limited v. Isabelle Gillard,WIPO Case No. D2015-0244.

Further, the addition of the term “flight” draws a connection to the services offered by the Complainant and associated with its trademarks. In the Panel´s view such a practice strengthens the inference of the Respondent’s knowledge of the VIRGIN and VIRGIN ATLANTIC trademarks. Besides, the Complainant has produced evidence of a previous UDRP case, Virgin Enterprises Limited v. Michelle Grand, WIPO Case No. D2018-1119, between the same parties and the VIRGIN trademark. Here, the Panel concluded that the Respondent knew of the Complainant’s trademark and activities.

Upon the above circumstances, it is reasonable to conclude that the Respondent was familiar with the trademarks and what they represented when registering the disputed domain name.

With regard to the use of the disputed domain name, the Panel notes that the disputed domain name resolved to a website that copied the official site. Likewise, the Panel finds that the Respondent attempted to obtain personal information and money from third parties by using an email address corresponding to the disputed domain name in an attempt to impersonate the Complainant. Nothing in the file allows the Panel to conclude otherwise.

Accordingly, in the Panel´s view the Respondent intentionally registered the disputed domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of such website and consequently that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(b)(iv) 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, <virginatlancticflight.com>, be transferred to the Complainant.

Manuel Moreno-Torres
Sole Panelist
Date: October 23, 2018