Altria Group, Inc. and Altria Group Distribution Company v. Zhichao Yang
Claim Number: FA1704001725244
Complainant is Altria Group, Inc. and Altria Group Distribution Company (“Complainant”), represented by Joel D. Leviton of Stinson Leonard Street LLP, Minnesota, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altriahealthcare.com>, registered with NameSilo, LLC.
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 Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 4, 2017; the Forum received payment on April 6, 2017.
On April 5, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <altriahealthcare.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 1, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@altriahealthcare.com. Also on April 11, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant ALTRIA GROUP states that it is the parent company of five well-known tobacco operating companies. It has continuously used its ALTRIA trade name and mark in interstate commerce for numerous years as the owner of the tobacco product operating companies. It owns the <altria.com> domain name and operates a website at <www.altria.com> that provides information about itself and its operating companies, among other things. ALTRIA GROUP also owns the <altriahealthplans.com> domain name and operates a website that provides information about health care plans for Altria Group employees.
Complainant has rights in the ALTRIA mark through registration in the United States in 2001. In addition to being registered for tobacco products, the mark is also registered in connection with charitable, financial, and philanthropic services. ALTRIA GROUP also owns registrations for its ALTRIA mark in several additional countries, including Australia, Canada, China, the European Union, Japan, Mexico, Mongolia, North Korea, Norway, Russia, Singapore, South Korea, Switzerland, Turkey, Ukraine, and Vietnam. Moreover, ALTRIA GROUP is the parent company of ALTRIA GROUP DISTRIBUTION COMPANY (“AGDC”). Since at least as early as 2003, AGDC has provided tobacco product distribution services and consumer engagement services in the field of tobacco products under the ALTRIA trademark. AGDC owns U.S. registrations for ALTRIA.
According to Complainant, the disputed domain name is confusingly similar to the ALTRIA mark because it contains the mark along with the generic phrase “healthcare” and the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has not been commonly known by the disputed domain name because the available WHOIS information identifies Respondent as “Zhichao Yang” and because Respondent is not authorized to use the ALTRIA mark. Respondent fails to use the domain name to make a bona fide offering or a legitimate noncommercial or fair use because the resolving website is used to attract Internet users to Respondent’s website, which consists only of revenue-generating advertisements and links. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent uses the disputed domain name in bad faith because the resolving website is used to attract Internet users to Respondent’s website, which consists only of revenue-generating advertisements and links and because the domain name is intended to confuse Internet users as to its association with Complainant. Respondent registered the domain name in bad faith because it did so with knowledge of Complainant’s rights in the ALTRIA mark based upon Complainant’s rights in the mark predating domain name registration and the mark’s use as the only distinctive portion of the domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two Complainants in this matter: Altria Group, Inc. and Altria Group Distribution Company. Complainants claim that Altria Group, Inc. is the parent company of Altria Group Distribution Company and that both own and use the ALTRIA mark and associated marks.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, consequently it will treat them all as a single entity in this proceeding. Throughout this decision, the Complainants will be collectively referred to as “Complainant.”
Complainant registered its ALTIRA mark in 2001 and uses it to promote a variety of products and services, including health care.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a website that offer click-through advertising links to a variety of products and services.
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 and is being used in bad faith.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is confusingly similar to the ALTRIA mark because it contains the mark along with the phrase “healthcare” and the gTLD “.com.” The phrase “healthcare” is generic, and such additions are not sufficient to differentiate a domain name and mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Accordingly, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s mark.
Complainant has not licensed or otherwise authorized Respondent to use the ALTRIA mark. Respondent has not been commonly known by the disputed domain name: the available WHOIS information identifies Respondent as “Zhichao Yang”. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Accordingly, the Panel finds that Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name to make a bona fide offering or a legitimate noncommercial or fair use because the resolving website is used to attract Internet users to Respondent’s website, which consists only of revenue-generating advertisements and links. Using a domain name containing another party’s trademark to operate a portal website that generates advertising and click-through revenue is not a bona fide offering of goods or services, nor a noncommercial fair use of the domain name. See Elsevier B.V. v. Domain Deluxe, FA 237520 (Forum March 24, 2004) (“Respondent uses the disputed domain name to host a portal website that’s principal purpose is to generate revenue via the use of advertisements....[S]uch an enterprise qualifies as neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name.”); see also Cabela’s, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin, FA 301918 (Forum February 24, 2010) (holding that respondent’s use of domain names that featured generic links to third-party web sites was neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Thus Respondent’s use of the domain name is neither a bona fide offering nor a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the disputed domain resolves to a website that consists only of revenue-generating advertisements. This constitutes bad faith use. See Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also Intel Corporation v. M. Macare a/k/a M. Macar, FA 660685 (April 26, 2006) (“[T]he Panel infers that Respondent receives click-through fees for each consumer it diverts to these other websites[,] finds that Respondent is taking advantage of the confusing similarity between the domain name and Complainant’s marks in order to profit from the goodwill associated with the marks, and holds that Respondent’s registration and diversionary use of the disputed domain names constitutes bad faith ...”). Consequently, the Panel finds that Respondent’s use of the domain name is bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <altriahealthcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 8, 2017
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