URS DEFAULT DETERMINATION


Virgin Enterprises Limited v. xujing
Claim Number: FA1707001741427


DOMAIN NAME

<virginmedia.group>
 <virginmedia.ltd>


PARTIES


   Complainant: Virgin Enterprises Limited of London, United Kingdom
  
Complainant Representative: Stobbs Julius E Stobbs of Cambridge, United Kingdom

   Respondent: xujing xujing xujing of haidianqu, beijing, II, CN
  

REGISTRIES and REGISTRARS


   Registries: Romeo Town, LLC,Over Corner, LLC
   Registrars: Ourdomains Limited

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.
   Ms. Kateryna Oliinyk, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: July 25, 2017
   Commencement: July 26, 2017
   Default Date: August 10, 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").

RELIEF SOUGHT


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

STANDARD OF REVIEW


   Clear and convincing evidence.

FINDINGS and DISCUSSION



   Findings of Fact: Complainant owns rights in the VIRGIN and VIRGIN MEDIA trademarks, based on a number of UK and CTM trade mark registrations, the status and confirmation of use in which are supported by relevant entries with the Clearinghouse, copies of which are attached to the complaint. The Complainant has a significant reputation and has a vast amount of goodwill in the VIRGIN name.

  

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.

Determined: Finding for Complainant 


The registered domain names <virginmedia.group> and <virginmedia.ltd> fully incorporate the word marks VIRGIN and VIRGIN MEDIA for which the Complainant holds valid registrations in different jurisdictions and that are in current use, the status and confirmation of use in which are supported by relevant entries with the Clearinghouse. It is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus new gTLDs .group and .ltd do not preclude confusion of the conflicting domains with the Complainant’s marks. Quite to the contrary, the new gTLD .group and .ltd refer to the legal status of the VIRGIN Group or the legal form of incorporation of any of the companies falling within the group, that just intensifies the association with the Complainant. Respectively, the Examiner finds that the contested domain name is confusingly similar with the Complainant’s word marks under URS 1.2.6.1. (i).


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

Determined: Finding for Complainant 


The Examiner determines that the Respondent is not commonly known by the VIRGIN and/or VIRGIN MEDIA name and that the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant’s marks in a domain name or otherwise. When accessing the websites under the disputed domain names <virginmedia.group> and <virginmedia.ltd>, the user is presented with the messages ‘site’s server DNS address cannot be found’. This error may be under the control of the Respondent, but also the cause of this error may be incorrect DNS settings in the user’s computer. Thus, it appears that the screenshots of the websites to which the disputed domain names resolve do not give the information about the actual use of the domain names by the Respondent. However, the cases papers do not contain any information which might evidence on the legitimate fair use of the domain names by the Respondent. Therefore, the Examiner finds that the Complaint meets URS requirement of 1.2.6.2.


[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.

Determined: Finding for Complainant 


Because the Complainant’s trademark has a strong reputation and the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law. Further evidence of bad faith consists of the failure of the Respondent to respond to Complainant's requests to resolve this matter.


FINDING OF ABUSE or MATERIAL FALSEHOOD


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

The Examiner finds as follows:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


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:

  1. virginmedia.group
  2. virginmedia.ltd

 

Ms. Kateryna Oliinyk
Examiner
Dated: August 14, 2017

 

 

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