Altria Group, Inc. and Altria Group Distribution Company v. shilei
Claim Number: FA1703001724071
Complainants are Altria Group, Inc. and Altria Group Distribution Company ("Complainants"), represented by Joel D. Leviton of Stinson Leonard Street LLP, Minnesota, USA. Respondent is shilei ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wwwaltriahealthplans.com>, <altriaheathplans.com>, and <altriahealthplan.com>, registered with Ourdomains 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.
David E. Sorkin as Panelist.
Complainants submitted a Complaint to the Forum electronically on March 28, 2017; the Forum received payment on March 29, 2017.
On March 28, 2017, Ourdomains Limited confirmed by email to the Forum that the <wwwaltriahealthplans.com>, <altriaheathplans.com>, and <altriahealthplan.com> domain names are registered with Ourdomains Limited and that Respondent is the current registrant of the names. Ourdomains Limited has verified that Respondent is bound by the Ourdomains 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 March 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@wwwaltriahealthplans.com, postmaster@altriaheathplans.com, postmaster@altriahealthplan.com. Also on March 30, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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 April 25, 2017, pursuant to Complainants' request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainants request that the domain names be transferred from Respondent to Complainants.
A. Complainants
Complainant Altria Group, Inc., is the parent company of four tobacco operating companies, including the manufacturer of the leading brand of cigarettes in the United States and the world's leading manufacturer of moist smokeless tobacco, and of a distribution company, Altria Group Distribution Company, the other Complainant in this proceeding. Complainants have used the ALTRIA mark in connection with these businesses for many years; Complainant Altria Group, Inc., provides information about health care plans for its employees using the domain name <altriahealthplans.com>. Complainants hold various registrations for the ALTRIA mark in the United States, China, and many other jurisdictions, and Complainants also claim common-law rights in the mark.
The disputed domain names were registered by Respondent in November 2016. The domain names resolve to web pages comprised of what appear to be pay-per-click links to various health insurance plans. Complainants state that they have not authorized or licensed Respondent to use their mark in any form, and assert that Respondent is not commonly known by the disputed domain names. On these grounds Complainants contend that the disputed domain names are confusingly similar to a mark in which Complainants have rights; that Respondent has no rights or legitimate interests in respect of the disputed domain names; and that the domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainants have rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used 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 Complainants' 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.").
Each of the disputed domain names combine Complainants' ALTRIA mark with the generic term "health plans" and the ".com" top-level domain, and either omit a letter or add "www" as a prefix. These additions do not substantially diminish the similarity between the domain names and Complainants' mark. See, e.g., Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, FA 1670787 (Forum May 24, 2016) (finding <altriaemplyee.com> and <altriaemploye.com> confusingly similar to ALTRIA). The Panel finds that each of the disputed domain names is confusingly similar to Complainants' mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainants' well-known mark, and apparently their sole use has been in connection with websites comprised of sponsored advertising links. See, e.g., Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, supra (finding lack of rights or legitimate interests in similar circumstances). Complainants have made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainants have sustained their burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's use of domain names incorporating Complainants' mark to profit from confusion by displaying what presumably are pay-per-click links is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, supra. Accordingly, the Panel finds that the disputed domain names were registered and are being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwaltriahealthplans.com>, <altriaheathplans.com>, and <altriahealthplan.com> domain names be TRANSFERRED from Respondent to Complainants.
David E. Sorkin, Panelist
Dated: April 26, 2017
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