Altria Group, Inc. and Altria Group Distribution Company v. Ashley Foxcroft
Claim Number: FA1704001729104
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 Ashley Foxcroft (“Respondent”), Unspecified.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altria.global>, registered with Mesh Digital Limited.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 27, 2017; the Forum received payment on May 3, 2017.
On April 28, 2017, Mesh Digital Limited confirmed by e-mail to the Forum that the <altria.global> domain name is registered with Mesh Digital Limited and that Respondent is the current registrant of the name. Mesh Digital Limited has verified that Respondent is bound by the Mesh Digital Limited 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 May 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 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@altria.global. Also on May 5, 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 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant uses the ALTRIA mark in connection with interstate sale and distribution of tobacco products.
Complainant has registered the ALTRIA mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,029,629, registered Dec. 13, 2005), as well as in several other countries, which demonstrates its rights in the mark.
Respondent’s <altria.global> domain name is identical and confusingly similar to the ALTRIA mark as it incorporates the mark entirely and simply adds the top-level domain (“TLD”) “.global,” which does not meaningfully distinguish it from Complainant’s registered mark.
Respondent has no rights or legitimate interests in <altria.global>. Respondent is not commonly known by the disputed domain name. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor does it engage in legitimate noncommercial or fair use. Instead, Respondent uses <altria.global> as a portal in order to generate revenue through advertisements and links.
Respondent registered and used the <altria.global> domain name in bad faith. Respondent’s use of the domain name to provide links to third party commercial websites, as well as listing the domain name for sale, constitutes bad faith under Policy ¶ 4(a)(iii). Respondent had actual or constructive notice of Complainant’s rights in the ALTRIA mark prior to registration of the <altria.global> domain name because of Complainant’s widespread use of the mark and its trademark registrations with the USPTO. This notice is further evidenced by Respondent’s registration of another domain name containing the trademark of one of Complainant’s subsidiaries.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the ALTRIA mark as evidenced by its registration of such mark with the USPTO.
The at-issue domain name is confusingly similar to Complainant’s ALTRIA trademark.
Respondent’s at issue domain name addresses a website presenting various revenue-generating advertisements and website links.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the ALTRIA trademark demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO). Likewise Complainant’s additional worldwide registrations for its ALTRIA mark also demonstrate Complainant’s rights under Policy ¶ 4(a)(i). See also Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s at-issue domain name contains Complainant’s entire ALTRIA trademark followed by the top level domain name “.global”. The additional a necessary top-level domain name is irrelevant to Policy 4(a)(i) analysis, therefore the Panel finds that Respondent’s <altria.global> domain name is identical to Complainant’s ALTRIA trademark. See Kellogg North America Company v. Lakhvinder Singh, FA 1686534 (Forum Sept. 20, 2013) (“.global is a generic top level domain and does not distinguish [<kelloggs.global> and <kellogg.global>] from the Complainant’s KELLOGG’s mark.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Here, Respondent lacks both rights and legitimate interests in respect of the at‑issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstance from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the <altria.global> domain name lists “Ashley Foxcroft/Ashley Foxcroft” as its registrant. There is no evidence before the Panel which otherwise suggests that Respondent is known by the at-issue domain and Respondent makes no claim that it is known by the domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <altria.global> domain name pursuant to Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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.)
Respondent uses the confusingly similar domain name to address a website that acts as a portal to third-party sites. Using the trademark identical <altria.global>domain name in such manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances as well as other circumstances compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent offered the at-issue domain name for sale on its <altria.global> addressed webpage. Presumably the offer is for an amount in excess of Respondent’s out-of-pocket costs. Respondent’s general offer to sell the at-issue domain name suggests bad faith pursuant to Policy ¶ 4(b)(i). See Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”); see also, Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“The Panel concluded that Respondent’s general offer of the disputed domain name registration for sale [on the website associated with the disputed domain name] establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Next, as mentioned above regarding Policy ¶ 4(a)(ii), Respondent uses the at-issue domain name to address a website. The website displays hyperlinks and acts as a portal to third parties. It is reasonable to find that Respondent generates revenue from either a pay-per-click scheme or otherwise. Use of the domain name in this manner demonstrates Respondent’s bad faith registration and use of <altria.global> domain name under Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Finally, Respondent registered the <altria.global> domain name with actual knowledge of Complainant’s ALTRIA trademark. Respondent’s knowledge of Complainant’s mark is inferred from the notoriety of Complainant’s trademark, the fanciful nature of the mark, and from Respondent’s reference to Complainant’s business name, Altria Global, in the domain name. Respondent’s actual knowledge of Complainant’s rights in the ALTRIA mark prior to its registering the <altria.global> domain name further urges that Respondent registered and used the at-issue domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <altria.global> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 1, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page