You might not win if the respondent puts up a fight.
On the face of it, it seems that the Uniform Rapid Suspension (URS) system was tailor made for cases like this: virgin-atlantic.cloud.
But that doesn’t mean you can just phone it in.
A National Arbitration Forum panelist has ruled against Virgin Enterprises in its URS against this domain name.
The registrant says he registered the domain “to publish an English translation of a novel that he is planning to write, titled “vergine atlantica” which would be about trafficking of virgins to the new world.”
Hmm. On a .cloud domain?
Here’s what panelist Richard W. Hill wrote about the issue of bad faith:
Complainant alleges that, bearing in mind the reputation of its VIRGIN brand, and the fact that Respondent asked it to bid for the domain name when it approached Respondent, it is difficult to find reason to believe that the domain was registered for any reason other than to sell it to Complainant for an amount in excess of out of pocket costs.
Complainant does not provide any evidence to support this allegation. Respondent denies the allegation. The Examiner finds that Complainant has failed to satisfy its burden of providing clear and convincing evidence.
Similarly, the Examiner finds that Complainant has failed to satisfy its burden of providing clear and convincing evidence to support its allegations to the effect that Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor (as required by URS Procedure 220.127.116.11.c), or that Respondent has engaged in a pattern of registering domain names in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name (as required by URS Procedure 18.104.22.168.b).
Complainant alleges that Respondent, by using the registered domain name, has intentionally attempted to attract increased traffic to the web site which the domain resolves to, and that Respondent is profiting from this.
But Complainant provides evidence to show that the registered domain name is not being used, and Respondent states that the registered domain name is not being used. Consequently, the Examiner finds that Respondent has not intentionally attempted to attract, for commercial gain, Internet users to his web site.
Complainant cites previous URS determinations in its favor. But those previous determinations must be distinguished from the present case. In case no. FA1507001627578 Respondent did not explain for what purpose he has registered a domain name equivalent to the Complainant’s mark, whereas Respondent has provided an explanation in the present case. In cases nos. FA1603001667148 and FA1608001691854 there was no Response, whereas there was a Response in the present case.
There are two takeaways:
1. Don’t make a boilerplate assertion that isn’t true. Virgin stated that the the respondent was trying to attract traffic to the domain’s website, but even it submitted evidence showing it’s not in use.
2. Just responding to a URS is a great first step.
Virgin can always escalate this to a UDRP.
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Author: Andrew Allemann