Virgin Enterprises Limited v. Domain Protection Services, Inc.
Claim Number: FA1707001740916
Complainant: Virgin Enterprises Limited of London, United Kingdom.
Complainant Representative: Stobbs of Cambridge, United Kingdom.
Respondent: Domain Protection Services, Inc. of Denver, Colorado, US.
REGISTRIES and REGISTRARS
Registries: Dot GLOBAL AS
Registrars: Name.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Mr. Peter Müller, as Examiner.
Complainant submitted: July 21, 2017
Commencement: July 21, 2017
Default Date: August 7, 2017
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").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
No multiple Complainants or Respondents and no multiple disputed domain names require dismissal.
Findings of Fact:
Even though the Respondent has defaulted, URS Procedure 1.2.6. requires the 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 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.
The Complainant provided documentary evidence that it is inter alia registered owner of the European trademark registration no. 014030399 VIRGIN ACTIVE, which was registered on November 23, 2015 for various goods and services in classes 9, 16, 25, 28, 41, and 43, as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s VIRGIN ACTIVE Mark. It is well established that the specific top level domain name is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant’s trademark and the disputed domain name.
The Examiner finds that the disputed domain name is identical to the VIRGIN ACTIVE Mark and that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[1.2.6.2.] The Registrant has no legitimate right or interest to the disputed domain name.
The Complainant contends that it made several attempts to contact the domain owner in an attempt to reach an amicable solution but no response has been received and that the Respondent therefore failed to indicate any legitimate interest in the disputed domain name. It further argues that is impossible to envisage any legitimate purpose for registering the disputed domain name, other than to capitalize or gain from the Complainant’s reputation.
The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name. In fact, the disputed domain name is used in connection with a website providing “Sponsored Listings,” i.e. advertising links to third parties’ websites.
The Examiner finds that Respondent has no rights to or legitimate interests in the disputed domain name and that the Complainant satisfied the elements of URS Procedure 1.2.6.2.
[1.2.6.3.] The disputed domain name was registered and is being used in bad faith.
The Complainant states that the VIRGIN ACTIVE Mark is famous, that “Sponsored Listings” of the type associated with the Respondent’s website are evidence of bad faith and that the disputed domain name is listed for sale for EUR 50,000. In addition, the Complainant states that the Respondent is clearly aiming to disrupt the Complainant’s business, and that the registration of the disputed domain name prevents the Complainant from reflecting its famous mark in a corresponding domain name.
Based on the Complainant’s longstanding and extensive use of the VIRGIN Mark in the United States, where the Respondent is located, is inconceivable that the Respondent registered the disputed domain name without knowledge of the Complainant’s rights.
As to bad faith use, by fully incorporating the VIRGIN ACTIVE Mark into the disputed domain name and by using the website at such domain name as a parking website providing advertising links to third parties’ websites, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for the purpose of earning click-through revenues from Internet users searching for the Complainant's website as set out in URS Procedure 1.2.6.3.d.
No abuse or material falsehood.
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.
<virginactive.global>
Mr. Peter Müller, Examiner
Dated: August 10, 2017
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