Altria Group, Inc. v Abhijeet Ranade
Claim Number: FA1403001548398
Complainant is Altria Group, Inc. (“Complainant”), represented by Joel D. Leviton of Stinson Leonard Street LLP, Minnesota, USA. Respondent is Abhijeet Ranade (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blogaltriagroup.com>, registered with WILD WEST DOMAINS, LLC.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 12, 2014; the National Arbitration Forum received payment on March 14, 2014.
On March 13, 2014, WILD WEST DOMAINS, LLC confirmed by e-mail to the National Arbitration Forum that the <blogaltriagroup.com> domain name is registered with WILD WEST DOMAINS, LLC and that Respondent is the current registrant of the name. WILD WEST DOMAINS, LLC has verified that Respondent is bound by the WILD WEST DOMAINS, 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 March 14, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 3, 2014 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@blogaltriagroup.com. Also on March 14, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 11, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
Complainant’s Contentions
Policy ¶ 4(a)(i): Complainant’s Rights and Confusingly Similar Domain Name
Complainant, Altria Group, Inc, is the parent company of four major American tobacco companies. Furthermore, Complainant uses its ALTRIA mark to promote charitable services such as scholarships, financial services, information about the prevention of underage tobacco use, and information to assist with tobacco product cessation. Complainant’s ALTRIA mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,029,629 registered Dec. 13, 2005).
Respondent’s <blogaltriagroup.com> domain name takes the ALTRIA mark and adds the generic terms “blog and “group” and the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii): Respondent Lacks Rights and Legitimate Interests
Respondent is not commonly known by the <blogaltriagroup.com> domain name. The WHOIS record lists “Abhijeet Ranade” as the registrant.
Respondent does not even have an active use for the <blogaltriagroup.com> domain name, as the domain name resolves to an empty page.
Policy ¶ 4(a)(iii): Respondent’s Bad Faith Use and Registration
Respondent’s failure to make any active use of the <blogaltriagroup.com> domain name is further evidence of bad faith pursuant to Policy ¶ 4(a)(ii). Respondent has held this domain name since September 2013, yet still has made no use of it.
Respondent was undoubtedly aware of Complainant’s rights in the ALTRIA mark when registering the <blogaltriagroup.com> domain name. This knowledge is indicative of Policy ¶ 4(a)(iii) bad faith registration.
Respondent’s Contentions
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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(e), 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 (Nat. Arb. 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.”).
Complainant explains that it is Altria Group, Inc, is the parent company of four major American tobacco companies. Complainant notes that it uses its ALTRIA mark to promote charitable services such as scholarships, financial services, information about the prevention of underage tobacco use, and information to assist with tobacco product cessation. Complainant’s ALTRIA mark has been registered with the USPTO (e.g., Reg. No. 3,029,629 registered Dec. 13, 2005). The Panel agrees that Complainant’s USPTO registration is good evidence of Policy ¶ 4(a)(i) rights in this mark, despite the fact Respondent allegedly resides in India. See, e.g., W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant further argues that Respondent’s <blogaltriagroup.com> domain name takes the ALTRIA mark and adds the generic terms “blog and “group” and the gTLD “.com.” The Panel agrees that despite the inclusion of two generic terms and a gTLD, this domain name remains confusingly similar to Complainant’s registered ALTRIA trademark. See Best Western Int’l, Inc. v. Lost in Space, SA, FA 126834 (Nat. Arb. Forum Nov. 7, 2012) (finding that the deletion of spacing in a mark and the addition of a gTLD are irrelevant as they are dictated by the standardized nature of second- and top-level domain names, and further that the addition of generic and descriptive terms fails to negate confusing similarity).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant does not believe that Respondent is not commonly known by the <blogaltriagroup.com> domain name. Complainant alleges that the WHOIS record lists “Abhijeet Ranade” as the registrant. Complainant further disclaims any license or authorization exists that may otherwise afford Respondent the right to use the ALTRIA mark in domain names. Many panels have faced similar facts before, and they often agree there can be no finding under Policy ¶ 4(c)(ii) without explicit evidence connecting the respondent’s name with the disputed domain name. See, e.g., Jordan Cook p/k/a Reignwolf v. Ryan Crase, Ryan Crase Creative Media, FA 1520515 (Nat. Arb. Forum Oct. 28, 2013) (noting that past panels had “declined to make findings under Policy ¶ 4(c)(ii) when the respondent did not make any claim that it was actually known by the domain names. Th[is] Panel agrees that there is no evidence that Respondent is known by the <reignwolf.com> and <reignwolfmusic.com> domain names under Policy ¶ 4(c)(ii).”). The Panel finds that Respondent is not commonly known by the disputed domain name for purposes of Policy ¶ 4(c)(ii).
Complainant addresses the fact that Respondent does not even have an active use for the <blogaltriagroup.com> domain name, as the domain name resolves to an empty page. Prior panels have found that the inactive holding of a confusingly similar domain name often deprives the respondent of any Policy ¶ 4(c)(i) bona fide offering, or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of, the disputed domain name in question. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (finding that 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)). The Panel finds Respondent’s inactive holding of the domain name since September 2013 to constitute evidence that Respondent has no rights in this domain name under Policy ¶¶ 4(c)(i), (iii).
Complainant has proven this element.
The Panel agrees that although Complainant has not argued under Policy ¶ 4(b), such reasoning is not required so long as Complainant can prove Respondent’s bad faith use and registration in some manner so as to suffice Policy ¶ 4(a)(iii). See Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)], does not mean that the domain names at issue were not registered in and are not being used in bad faith.”).
Complainant argues that Respondent’s failure to make any active use of the <blogaltriagroup.com> domain name is further evidence of bad faith pursuant to Policy ¶ 4(a)(ii). Complainant points out that Respondent has held this domain name since September 2013, yet still has made no use of it. In Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) the panel found that several months of holding a disputed domain name as an inactive website was enough to implicate Policy ¶ 4(a)(iii) bad faith. The Panel finds that Respondent’s six months of inactive holding is evidence of Policy ¶ 4(a)(iii) bad faith with respect to the <blogaltriagroup.com> domain name.
Respondent was undoubtedly aware of Complainant’s rights in the ALTRIA mark when registering the <blogaltriagroup.com> domain name. This knowledge is indicative of Policy ¶ 4(a)(iii) bad faith registration.
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <blogaltriagroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: April 14, 2014
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