Westmore · UDRP DecisionVirginsolar.com
The Panel ordered transfer of <virginsolar.com>. It found the domain confusingly similar to the Complainant’s widely known VIRGIN mark because it incorporated VIRGIN in full and merely added the generic term “solar.” The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the non-responding Respondent did not rebut. Bad faith was established under paragraph 4(b)(iv) because the domain was used for a commercial solar-products website, and the Panel inferred that the Respondent deliberately sought to divert traffic through confusion with the Complainant’s well-known mark.
The timeline behind virginsolar.com
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The decision illustrates how a domain combining a well-known mark with a generic term can satisfy all three UDRP elements when the added term relates to the domain’s commercial use and the respondent offers no credible reason for adopting the mark. The case also shows that a panel may resolve bad faith solely under paragraph 4(b)(iv) without addressing every additional bad-faith theory pleaded.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Virgin Enterprises Limited v. Lynwood Case No. D2015-1440 1. The Parties The Complainant is Virgin Enterprises Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Stobbs IP Limited, United Kingdom of Great Britain and Northern Ireland. The Respondent is Lynwood, Los Angeles, California, United States of America. 2. The Domain Name and Registrar The disputed domain name <virginsolar.com> is registered with Network Solutions, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2015. On August 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 17, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 August 24, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 13, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 15, 2015. The Center appointed Marilena Comanescu as the sole panelist in this matter on September 25, 2015. 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 language of the proceeding is English. 4. Factual Background The Complainant, Virgin Enterprises Limited, was created in 1970 and currently comprises over 200 companies operating worldwide with more than 40,000 employees and an annual group turnover in excess of GBP 4.6 billion. The Complainant has proven that its trademark VIRGIN enjoys high protection with many worldwide registrations covering a wide range of products and services. The Complainant’s trademark has been used in connection with additional terms, such as VIRGIN holidays, VIRGIN media, VIRGIN mobile, VIRGIN trains, etc. Furthermore, the Complainant is also active in the field of renewable energy, particularly solar energy. The founder of the Complainant is the “Patron of Solar Impulse”, a solar powered project promoting the use of clean technologies. The Complainant holds 4,500 domain names comprising the trademark VIRGIN, the principal being <virgin.com>. The disputed domain name <virginsolar.com> was registered on June 24, 2007 and, at the time of filing the Complaint, it was redirected to the website at “www.solar.com” and was used for selling various goods such as wind turbines, solar home products and solar lighting products. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s widely known trademark VIRGIN as it incorporates it in its entirety with the addition of the generic term “solar”, whereas the Complainant is involved in many activities, including those related to solar energy. The Respondent has no rights or legitimate interests in the disputed domain name. Initially the website corresponding to the disputed domain name resolved to a pay-per-click webpage. After the Complainant’s cease and desist letter, the disputed domain name was redirected to a retail outlet for products relating to solar energy. However, even such activity may create an appearance of legitimacy, the Respondent does not hold rights in the element “virgin”. The Complainant has a massive global reputation in different sectors, including in the promotion of solar energy and therefore, the Complainant claims that the disputed domain name was registered and has been used in bad faith according to paragraphs 4(b)(i), (iii) and (iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In view of the absence of any reply to the Complaint by the Respondent, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are shown: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has rights in the VIRGIN trademark, holding registrations worldwide since at least 1973. The dominant part of the disputed domain name <virginsolar.com> incorporates as prefix the Complainant’s widely known trademark VIRGIN together with the generic term “solar”. Numerous UDRP panels have considered that the addition of generic wording to trademarks in a domain name is not sufficient to escape a finding of confusing similarity and does not change the overall impression of the domain name as being connected to a complainant’s trademark. See paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). Further, it is well established in decisions under the UDRP that generic Top-Level Domains ( e.g. , “.com”, “.net”, “.org”) are typically irrelevant to the consideration of confusing similarity between a trademark and a domain name. Given the above, the Panel finds that the disputed domain name <virginsolar.com> is confusingly similar to the Complainant’s trademark VIRGIN, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Complainant proved trademark rights in the word “virgin” and asserts that it has given no authorization to the Respondent to use its trademark or to register a domain name comprising it. In line with previous UDRP decisions made in similar circumstances, the Panel accepts that the Complainant has provided a prima facie case of the Respondent’s lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent. See paragraph 2.1 of the WIPO Overview 2.0 . The Respondent chose not to challenge the Complainant’s allegations and did not come forward with some allegations or evidence of relevant rights or legitimate interests. There is no evidence before the Panel to support the contrary, and therefore the Panel accepts the Complainant’s arguments as facts. Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <virginsolar.com>, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith Considering that the Complainant’s VIRGIN trademark is well-known worldwide, it has been registered and used for about four decades before the disputed domain name was registered and in the absence of contrary evidence, the Panel finds that the Respondent knew of the Complainant’s services and trademarks and deliberately intended to create an association with the Complainant and its business when registering the disputed domain name. At the time of filing the Complaint, the disputed domain name resolved to a website providing various goods related to solar energy but the inclusion of the term “virgin” in the disputed domain name is not justified by the content of the website. Further, the Respondent did not put forward any justification for choosing and using such word in the disputed domain name. These facts support the inference that the purpose of the Respondent was diversion of traffic from the Complainant to itself via confusion with the Complainant’s well-known mark for the Respondent’s own commercial gain, at the same time being likely to damage the Complainant’s business and reputation. Such facts constitute bad faith under paragraph 4(b)(iv) of the Policy. The Panel finds irrelevant to analyze the other circumstances of bad faith behaviors claimed by the Complainant as one circumstance demonstrated is sufficient to establish bad faith under the UDRP. For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name <virginsolar.com> in bad faith, pursuant to the Policy, paragraph 4(a)(iii). 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <virginsolar.com> be transferred to the Complainant. Marilena Comanescu Sole Panelist Date: October 6, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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