URS DEFAULT DETERMINATION

 

Virgin Enterprises Limited v. WhoisGuard, Inc.

Claim Number: FA1603001667149

 

DOMAIN NAME

<virginamerica.site>

 

PARTIES

Complainant:  Virgin Enterprises Limited of London, United Kingdom.

Complainant Representative: 

Complainant Representative: Stobbs of Cambridge, United Kingdom.

 

Respondent:  WhoisGuard, Inc. of Panama, International, PA.

Respondent Representative:  None

 

REGISTRIES and REGISTRARS

Registries:  DotSite Inc.

Registrars:  NameCheap, Inc.

 

EXAMINER

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.

 

James Bridgeman, as Examiner.

 

PROCEDURAL HISTORY

Complainant submitted: March 24, 2016

Commencement: March 24, 2016   

Default Date: April 8, 2016

 

Having reviewed the communications records, the Examiner finds that the 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") .

 

RELIEF SOUGHT

Complainant requests that the disputed domain name be suspended for the life of the registration.

 

STANDARD OF REVIEW

Clear and convincing evidence.

 

FINDINGS and DISCUSSION

 

Complainant submits that it is the owner of rights in VIRGIN and VIRGIN AMERICA registered trademarks and have a validated entry made at the Trade Mark Clearinghouse in respect of same. In addition, Complainant submits that it has acquired a significant reputation and goodwill in the VIRGIN and VIRGIN AMERICA names globally.

 

Since its establishment in 1970 the Complainant’s VIRGIN group has expanded to over 200 companies worldwide operating in 32 countries including throughout Europe and the USA, employing over 40,000 people and generating an annual turnover of Stg. £4.6 billion.

 

VIRGIN AMERICA is a US based airline, which began service in August 2007.

Complainant submits that the disputed domain name is identical to Complainant’s VIRGIN AMERICA mark.

Despite several attempts made to contact Respondent in an attempt to reach an amicable solution, no response has been received by Complainant. Complainant submits that the disputed domain name resolves to a click through site displaying advertisements which Complainant submits is an obvious example of a bad faith registration in accordance with 1.2.6.3 of the URS Procedure.

 

Complainant submits that bearing in mind the extent and nature of the Complainant’s reputation in the VIRGIN and VIRGIN AMERICA brands and the fact that no substantive response has been received from Respondent to Complainant’s approach requesting that they transfer the domain with no financial compensation, it is difficult to find reason to believe that the disputed domain name was registered for any reason other than to sell it to the Complainant for valuable consideration in excess of documents out of pocket costs. Such activity constitutes bad faith registration and use under the URS Procedure.

 

Complainant further submits that it is clear that Respondent is profiting through having the advertisements displayed on the site.

 

Furthermore Complainant submits that Respondent is clearly aiming to disrupt Complainant’s business through the registration of a domain name which contains Complainant’s famous brand contrary to and the disputed domain name registration has prevented Complainant from reflecting its famous mark in the domain name.

 

Finally, Complainant submits that by using Complainant’s famous brand, Respondent has intentionally attempted to attract increased traffic to the site to which the disputed domain name resolves which constitutes a bad faith registration in accordance with 1.2.6.3 d. of the URS Procedure.

 

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:

“1.2.6.1. that the registered domain name is 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.

a. Use can be shown by demonstrating that evidence of use – which can be a declaration and one specimen of current use in commerce – was submitted to, and validated by, the Trademark Clearinghouse)

b. Proof of use may also be submitted directly with the URS Complaint. and

1.2.6.2. that the Registrant has no legitimate right or interest to the domain

name; and

1.2.6.3. that the domain was registered and is being used in bad faith.”

 

Complainant has furnished evidence of its ownership of the VIRGIN AMERICA trademark which was submitted to, and validated by, the Trademark Clearinghouse.

 

The disputed domain name is identical to Complainant’s VIRGIN AMERICA trademark as the <.site> gTLD extension may be ignored in the circumstances of this case for the purposes of the comparison.

 

Respondent has failed to submit a Response and so has failed to discharge the onus of proof required to establish that it has rights or legitimate interests in the disputed domain name in circumstances where Complainant has made out a prima facie case that Respondent has no such rights.

 

Complainant’s VIRGIN AMERICA mark has a distinctive character; the disputed domain name is identical to Complainant’s mark; and the disputed domain name is being used to generate income for Respondent. This Examiner finds that there is clear and convincing evidence that the disputed domain name was registered and is being used in bad faith by Respondent who is taking predatory advantage of Complainant’s rights and goodwill in the VIRGIN AMERICA mark so as to cause confusion as to the origin and source of the website to which the disputed domain name resolves and thereby generate income from advertisements.

 

 

FINDING OF ABUSE  or MATERIAL FALSEHOOD

No finding of abuse or material falsehood.

 

DETERMINATION

After reviewing the Complainant’s 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 names be SUSPENDED for the duration of the registration:

<virginamerica.site>.

 

 

 

James Bridgeman, Examiner

Dated:  April 11, 2016