Altria Group, Inc. and Altria Group Distribution Company v. Zhang Yin
Claim Number: FA1607001685811
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 Zhang Yin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altria.club>, registered with Chengdu West Dimension Digital Technology Co., Ltd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 27, 2016; the Forum received payment on August 1, 2016. The Complaint was submitted in both Chinese and English.
On July 28, 2016, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <altria.club> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 August 8, 2016, the Forum served the Complaint, including the Chinese complaint, and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of August 29, 2016 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.club. Also on August 8, 2016, the Chinese language 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 September 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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.
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant has registered the ALTRIA trademark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,029,629, registered Dec. 13, 2005). The mark is used in connection with conducting applicants’ shareholder and investor relations, namely providing shareholder record keeping and corporate information and analyses.
2. The <altria.club> domain name is identical or confusingly similar to the ALTRIA trademark because the domain name contains the entire mark and differs only by the addition of the top-level domain (TLD) “.club.”
3. Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name, nor is Respondent a licensee of Complainant. Furthermore, Respondent is using the domain name to resolve to a webpage displaying unrelated and competing hyperlinks.
4. Respondent has engaged in bad faith registration and use. By using the domain name to display competing and unrelated hyperlinks, Respondent has displayed bad faith under Policy ¶ 4(b)(iii) and (iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.[1]
Complainant holds trademark rights for the ALTRIA mark. Respondent’s domain name is confusingly similar to Complainant’s ALTRIA mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <altria.club> domain name, and that Respondent registered and uses the domain name in bad faith.
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.”).
Complainant has registered the ALTRIA trademark with the USPTO (Reg. No. 3,029,629, registered Dec. 13, 2005). The mark is used in connection with conducting its shareholder and investor relations, namely providing shareholder record keeping and corporate information and analyses. The registration of a mark with the USPTO is sufficient to establish rights under Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Complainant argues that the <altria.club> domain name is identical or confusingly similar to the ALTRIA trademark. The domain name contains the entire mark and differs only by the addition of the TLD “.club.” The Panel finds that the <altria.club> domain name is identical to the ALTRIA trademark under Policy ¶ 4(a)(i). See Citigroup Inc. v. Nicholas Bonner, FA 1604916 (Forum Mar. 18, 2015) (finding that the “.technology” gTLD was irrelevant to Policy ¶ 4(a)(i) analysis when assessing the confusing similarity between the <citigroup.technology> domain name and the CITIGROUP trademark).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <altria.club> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant asserts that Respondent is not commonly known by the <altria.club> domain name, nor is Respondent in possession of licensing rights that would allow him to use the ALTRIA mark in domain names. The Panel notes that “zhang yin” is listed as the registrant of record for the domain name. Furthermore, there is nothing in the record to indicate that Respondent is either commonly known by the <altria.club> domain name or in possession of licensing rights. Thus, Respondent does have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant argues that Respondent’s use of the <altria.club> domain name fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. To support this claim, Complainant has shown that the domain name resolves to a webpage that displays unrelated and competing hyperlinks. Such use cannot establish rights or legitimate interests within the meaning of the Policy. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”); see also 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.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has engaged in bad faith registration and use. Complainant claims that Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business and under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Complainant supports these arguments by showing that the domain name resolves to a webpage that displays unrelated and competing hyperlinks. Such conduct has been found to constitute bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
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.club> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 9, 2016
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