Altria Group, Inc. and Altria Group Distribution Company v. Kevin Perkins / United States of America
Claim Number: FA1701001714319
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 Kevin Perkins / United States of America (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <altria-usa.com>, <altriausa.com>, and <altriaglobal.com>, registered with Google Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 26, 2017; the Forum received payment on January 30, 2017.
On January 27, 2017, Google Inc. confirmed by e-mail to the Forum that the <altria-usa.com>, <altriausa.com>, and <altriaglobal.com> domain names are registered with Google Inc. and that Respondent is the current registrant of the names. Google Inc. has verified that Respondent is bound by the Google Inc. 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 January 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 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-usa.com, postmaster@altriausa.com, postmaster@altriaglobal.com. Also on January 31, 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 March 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the ALTRIA mark in connection with its tobacco businesses. Complainant has registered the ALTRIA mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,029,629, registered December 13, 2005), which demonstrates rights in the mark. See Compl., at Attached Ex. 4. Respondent’s <altria-usa.com>, <altriausa.com>, and <altriaglobal.com> are confusingly similar because they incorporate the ALTRIA mark entirely and merely add hyphenation, the geographic term “usa,” the generic term “global,” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in <altria-usa.com>, <altriausa.com>, and <altriaglobal.com>. Respondent is not commonly known by the disputed domain names. Respondent is also not making a bona fide offering of goods or services or a legitimate noncommercial or fair use through the domain names. Rather, Respondent is engaging in inactive holding of the disputed domain name. See Compl., at Attached Ex. 7 (search engine results).
Respondent registered and used <altria-usa.com>, <altriausa.com>, and <altriaglobal.com> in bad faith. First, the registration of several domain names that incorporate Complainant’s mark entirely is a pattern of bad faith under Policy ¶ 4(b)(ii). Respondent’s inactive holding of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(a)(iii). Respondent must have had constructive or actual notice of Complainant's rights in the ALTRIA mark prior to registration of the domain names because of Complainant's widespread use of the mark and its trademark registrations with the USPTO.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name, <altria-usa.com>, <altriausa.com>, and <altriaglobal.com>, were registered on August 8, 2016.
The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that Respondent engaged in bad faith use and registration of the disputed domain names.
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 Panel finds that the disputed domain names are confusingly similar to Complainant’s valid and subsisting trademark, ALTRIA. Complainant has adequately pled its rights and interests in and to that trademark. The disputed domain names, <altria-usa.com>, <altriausa.com>, and <altriaglobal.com>, are confusingly similar because they incorporate the ALTRIA mark entirely and merely add hyphenation, the geographic term “usa,” the generic term “global,” and the “.com” generic top-level domain (“gTLD”). This is inadequate to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in the disputed domain names. Respondent is apparently not commonly known by the disputed domain names. WHOIS information associated with this case shows that Respondent used the “Contact Privacy Inc.” privacy service to shield its identity. See Compl., at Attached Ex. 2. Panels have held that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where a privacy service was listed as the registrant of the disputed domain name. Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015). As such, the Panel finds that Respondent is not commonly known by the disputed domain names.
Additionally, the Panel finds that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use through the domain names. Rather, Respondent apparently is engaging in inactive holding of the disputed domain names. See Compl., at Attached Ex. 7 (search engine results). A respondent’s non-use of a domain name that is identical to a complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Therefore, the Panel finds that Respondent has no rights or legitimate interests in <altria-usa.com>, <altriausa.com>, and <altriaglobal.com> pursuant to Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
The Panel also finds that Respondent engaged in bad faith use and registration of the disputed domain names. The registration of several domain names that incorporate Complainant’s mark entirely demonstrates a pattern of bad faith under Policy ¶ 4(b)(ii). Panels have found that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013). As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain names.
Also, Respondent’s inactive holding of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(a)(iii). “Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015). See also Indiana University v. Ryan G Foo / PPA Media Services, FA1411001588079 (Forum Dec. 28, 2014) (“Under the circumstances, Respondent’s seemingly inutile holding of the at-issue domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).”). Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith.
Finally, the Panel finds that Respondent had actual notice of Complainant’s prior rights in and to the trademark, ALTRIA, because of Complainant's widespread use of the mark and its trademark registrations with the USPTO. Given the totality of the circumstances and the wide use of the trademark ALTRIA, the Panel finds that Respondent had knowledge of Complainant’s prior rights in and to the trademark.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain names.
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-usa.com>, <altriausa.com>, and <altriaglobal.com> domain names transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 3, 2017
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