Virgin Enterprises Limited v. sheng wang

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Complainant shows to be the holder of valid national registrations in the VIRGIN AMERICA trademark and that the trademark is in current use. Examiner finds that the disputed domain name <virginamerica.club> is identical to the Complainant’s HOLIDAY INN Trademark. Therefore, Examiner finds that the first element for Complainant to obtain the suspension of a domain name under URS 1.2.6.1 has been proven.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Complainant has not authorized Respondent to use its registered VIRGIN AMERICA trademark. Respondent has not submitted any evidence to prove that he is commonly known as VIRGIN AMERICA or under the disputed domain name. There is no evidence about rights or legitimate interest in VIRGIN AMERICA and the disputed domain names, or evidence about a fair use either. Therefore, Examiner finds that the second element for Complainant to obtain the suspension of a domain name under URS 1.2.6.2 has also been proven.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s 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 Registrant’s web site or location or of a product or service on that web site or location.

The passive holding of a domain name can constitute bad faith registration and use, especially when combined with other factors such as the respondent preventing a trademark or service mark holder from reflecting its mark in a corresponding domain name, the failure of the respondent to respond to the complaint, inconceivable good faith use, etc. (See e.g., Telstra Corporation Limited, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763; Liu.Jo S.p.A. v. Martina Hamsikova, WIPO Case No. D2013-1261). In the present case, Respondent is passively holding the disputed domain name as it simply redirects to a webpage containing sponsored links, some of which refer to competitors of Complainant. Redirecting the domain name to the Complainant’s website can also be an indication of bad faith as such when it is done for commercial gain (See VistaPrint USA, Inc. v. Electric Attic, NAF Case No. 1258624; Sports Auth. Mich., Inc. v. Internet Hosting, NAF Case No. 124516). Respondent also failed to respond to the complaint in accordance with the Rules. It is inconceivable to this Panel that Respondent was unaware of Complainant and its trademark rights when it registered the disputed domain name which is identical to Complainant’s VIRGIN AMERICA trademark. Therefore, Examiner finds that the third element for Complainant to obtain the suspension of a domain name under URS 1.2.6.3 has been proven.

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

virginamerica.club

	Complainant Submitted: November 12, 2014
	Commencement: November 14, 2014
	Default Date: December 2, 2014
	Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

	Complainant: Virgin Enterprises Limited Victoria Wisener of London, United States of America
	Complainant Representative: Stobbs Julius E Stobbs of Cambridge, United Kingdom

	The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
	Flip Jan Claude Petillion, as Examiner

	Respondent: sheng wang of beijing, beijing, beijing, China

	Registries: .CLUB DOMAINS, LLC
	Registrars: GoDaddy.com, Inc.