Virgin Enterprises Limited v. jonny tokyo
Claim Number: FA2210002014927
Complainant is Virgin Enterprises Limited ("Complainant"), represented by Katherine E. Sieve of Norvell IP llc, Illinois, USA. Respondent is jonny tokyo ("Respondent"), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <virginpuslejobs.us> and <virginpulsejobs.us>, registered with NameCheap, 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 Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on October 6, 2022; Forum received payment on October 6, 2022.
On October 6, 2022, NameCheap, Inc. confirmed by email to Forum that the <virginpuslejobs.us> and <virginpulsejobs.us> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On October 11, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@virginpuslejobs.us, postmaster@virginpulsejobs.us. Also on October 11, 2022, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On November 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is the brand owner for the Virgin Group, which was founded in 1970. Complainant states that VIRGIN is now one of the world's most recognized brands, with successful businesses in travel services, mobile telephony, entertainment, financial services, and other sectors; and that it has been held to be a famous trademark, citing Virgin Enterprises, Ltd. v. Nawab, 335 F.3d 141, 149 (2d Cir. 2003). Complainant owns numerous United States trademark registrations for VIRGIN and VIRGIN-formative marks, including VIRGIN PULSE, which Complainant uses for health and wellness program services.
Respondent registered the disputed domain names <virginpuslejobs.us> and <virginpulsejobs.us> in July 2022. The physical address included in the registration data provided by Respondent is invalid. Complainant alleges that Respondent has impersonated Complainant by sending fraudulent email messages with fake job postings from an email address incorporating the domain name <virginpuslejobs.us>, in which the recipient is prompted to download software, provide personal information, and make payments to Respondent. Complainant states that Respondent is not commonly known by the domain names and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain names <virginpuslejobs.us> and <virginpulsejobs.us> are confusingly similar to its VIRGIN and VIRGIN PULSE marks; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered or are being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP principles as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a), and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain names <virginpuslejobs.us> and <virginpulsejobs.us> incorporate Complainant's VIRGIN PULSE mark or a misspelling thereof, omitting the space and appending the generic term "jobs" and the ".us" top-level domain. These alterations do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Virgin Enterprises Ltd. v. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Daniel Kim, D2021-1428 (WIPO July 12, 2021) (finding <virginpulse.careers> identical to VIRGIN PULSE); Lockheed Martin Corp. v. Rauf Khan / M, FA 1937907 (Forum Apr. 22, 2021) (finding <lockheedmartinjobs.us> confusingly similar to LOCKHEED MARTIN); Virgin Enterprises Ltd. v. Michelle Grand, D2018-2062 (WIPO Oct. 23, 2018) (finding <virginatlancticflight.com> confusingly similar to VIRGIN and VIRGIN ATLANTIC). The Panel considers the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark or a misspelled version of the mark without authorization, and their sole apparent use has been to impersonate Complainant in connection with a fraudulent scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Virgin Enterprises Ltd. v. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Daniel Kim, supra (finding lack of rights or interests in similar circumstances); Lockheed Martin Corp. v. Rauf Khan / M, supra (same); Virgin Enterprises Ltd. v. Michelle Grand, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered or are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent'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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used at least partially false registration data to register two domain names incorporating Complainant's mark or a misspelled version thereof, and has used one or both of the names to impersonate Complainant in connection with a fraudulent scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Virgin Enterprises Ltd. v. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Daniel Kim, supra (finding bad faith in similar circumstances); Lockheed Martin Corp. v. Rauf Khan / M, supra (same); Virgin Enterprises Ltd. v. Michelle Grand, supra (same). The Panel finds that the disputed domain names were registered or are being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <virginpuslejobs.us> and <virginpulsejobs.us> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 8, 2022
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