The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Gaurav Chhibber of New Delhi, India.
The disputed domain name <virginaustra1ia.com> (the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 18, 2016. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 19, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on April 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 26, 2016.
The Center appointed Michelle Brownlee as the sole panelist in this matter on May 6, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant owns Australian Trademark Registration Nos. 1344456 and 1420517 for two different VIRGIN AUSTRALIA and design marks in connection with various goods and services in international classes 9, 16, 25, 28, 35, 36, 38, 39, 41, 43 and 44, and owns Australian Trademark Registration No. 1523585 for the mark VIRGIN AUSTRALIA HOLIDAYS in connection with services in classes 36, 39, 41 and 43. The Complainant also owns numerous registrations in the European Community and United Kingdom for the mark VIRGIN and VIRGIN signature design in connection with various goods and services. The earliest of the Complainant's trademark registrations dates back to 1973.
The Respondent registered the Domain Name on March 8, 2016.
The Complainant is the brand owner for the Virgin Group of Companies. The Virgin Group originated in 1970 when Richard Branson began selling music records under the VIRGIN name and since that time, the Virgin Group's business has expanded into many areas, including airlines, books, wine, soft drinks, clothing, financial services, hotel services, mobile telecommunications services, and interactive games, among others. The Virgin Group is comprised of over 200 companies that operate in 32 countries, including throughout Europe and the United States of America. The majority of these companies use VIRGIN as part of their company name or in their consumer facing name for their products or services. The Virgin Group employs more than 40,000 people and has an annual turnover of more than 4.6 billion pounds. The Complainant operates an airline with service between Australia and New Zealand under the brand VIRGIN AUSTRALIA, and operates a web site relating to this airline at "www.virginaustralia.com".
The Complainant contends that the Domain Name is identical or confusingly similar to its VIRGIN and VIRGIN AUSTRALIA trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith. The Complainant contends that the Respondent is using the Domain Name in connection with a website that appears to be designed to conduct a fraudulent phishing scheme that solicits personal information from unsuspecting customers who believe they are ordering airline tickets from the Complainant's website. The Complainant also argues that the Respondent has engaged in a pattern of bad faith registration and use of domain names that incorporate other third-party airline trademarks, as the Respondent has also registered the domain name <singaporeair1ines.com> in connection with a similar site featuring the logo of Singapore Airlines.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Complainant has demonstrated that it owns rights in the VIRGIN and VIRGIN AUSTRALIA trademarks. The Panel finds that the Domain Name is confusingly similar to the Complainant's VIRGIN AUSTRALIA mark. The second level of the Domain Name is identical to the mark, except for the substitution of the number "1" for a lower case letter "l". Since the number "1" and lower case letter "l" are nearly indistinguishable, the Domain Name creates the visual impression of being identical to the Complainant's mark. The Complainant has satisfied the first element of the Policy.
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
In this case, the Respondent has not presented evidence that the Respondent used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services; that the Respondent is commonly known by the Domain Name; that the Respondent is making a legitimate noncommercial or fair use of the Domain Name; or in any other way refuted the Complainant's prima facie case. The Complainant has alleged that the Respondent is using the Domain Name in connection with a web site that appears to be a site to order tickets for the Complainant's airline, but the site is not an authorized reseller of airline tickets, and is a fraudulent scheme to collect personal information from visitors to the site. The Respondent has not refuted these allegations. In the Panel's view, this cannot be considered a bona fide offering of goods or services. Accordingly, the Panel finds that the Complainant has established this element of the Policy.
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
"(i) circumstances indicating that the respondent has registered or acquired the domain name at issue 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
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location."
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Complainant has alleged that the Domain Name is being used in connection with a web site that offers to sell tickets for the Complainant's airline for the fraudulent purpose of attempting to collect personal information from visitors to the site. The Respondent did not reply to these contentions. The Panel finds that the Respondent was obviously aware of the Complainant's marks and the Respondent's use of the Domain Name to falsely suggest an affiliation with the Complainant is in furtherance of an attempt to induce Internet users to provide personal information to the Respondent, which presumably results in commercial gain to the Respondent. Under the circumstances, the Panel finds that the Respondent has registered and used the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <virginaustra1ia.com>, be transferred to the Complainant.
Michelle Brownlee
Sole Panelist
Date: May 17, 2016