Altria Group, Inc. and Altria Group Distribution Company v. nam jong kang
Claim Number: FA1604001670912
Complainant is Altria Group, Inc. and Altria Group Distribution Company (“Complainant”), represented by Joel D. Leviton of Stinson Leonard Street LLP, Minnesota, United States. Respondent is nam jong kang (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altria.co>, registered with 1API GmbH.
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 April 18, 2016; the Forum received payment on April 20, 2016.
On April 19, 2016, 1API GmbH confirmed by e-mail to the Forum that the <altria.co> domain name is registered with 1API GmbH and that Respondent is the current registrant of the name. 1API GmbH has verified that Respondent is bound by the 1API GmbH 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 April 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 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.co. Also on April 20, 2016, 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 13, 2016, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers a number of services under its ALTRIA mark, including charitable services such as providing scholarships, various financial services, and providing information about underage tobacco prevention and tobacco issues, among others. Complainant has registered the ALTRIA mark with the United States Patent and Trademark Office (e.g., Reg. No. 3,029,629, registered Dec. 13, 2005) which establishes rights in a mark. See Compl., at Attached Ex. 4. Respondent’s <altria.co> domain name is identical to the ALTRIA mark as it consists solely of the ALTRIA mark combined with the top-level domain (“TLD”) “.co.”
Respondent has no rights or legitimate interests in the <altria.co> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the ALTRIA mark. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <altria.co> domain name. Rather, the domain name resolves to an active website displaying revenue-generating advertisements and links. See Compl., at Attached Ex. 8 (hyperlinks include: “How to Trade Online Stocks” “What Stocks to Invest In” “Buying Stocks” and “High Yield Dividend Stocks”).
Respondent is using the <altria.co> domain name in bad faith. First, Respondent’s use of the domain to display hyperlinks to products and/or services that are in direct competition with Complainant serves as a disruption of Complainant’s legitimate business purposes. Second, Respondent’s use of the domain to host competing links constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). Finally, Respondent had actual knowledge of the ALTRIA mark at the time the domain was registered, as evidenced by the ALTRIA mark being the only distinctive term in the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <altria.co> domain name was registered on July 3, 2015.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 there can be little doubt that the disputed domain name is confusingly similar to the valid and subsisting registered trademark of the Complainant. Complainant has adequately pled its interests in and to its trademark. Respondent arrives at the disputed domain name by merely adding the gTLD “.co” to the precise trademark at issue.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
In addition, there is no evidence in the record to indicate the Respondent has any rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the ALTRIA mark. Complainant’s Exhibit 2, the WHOIS information regarding the disputed domain name, lists “Nam Jong Kang” as registrant of record. As Respondent has failed to submit a response in this proceeding, in light of the available evidence, the Panel concludes that there is no basis in fact to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Respondent’s use of the <altria.co> domain name to display hyperlinks that compete directly with Complainant’s business serves as a disruption of Complainant legitimate business purposes pursuant to Policy ¶ 4(b)(iii). See Compl., at Attached Ex. 8 (links include: “How to Trade Online Stocks” “What Stocks to Invest In” “Buying Stocks” and “High Yield Dividend Stocks”). Panels have agreed where a respondent has attempted to divert Internet users via hyperlinks related to such a complainant’s legitimate business, such use constitutes bad faith disruption under Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Therefore, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Further, Respondent’s use of the disputed domain name to host competing hyperlinks constitutes bad faith registration and use. Panels have held that such use by a respondent demonstrates bad faith under the Policy. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel finds that Respondent registered and is using the domain in bad faith per Policy ¶ 4(b)(iv).
Respondent apparently had actual knowledge of Complainant's rights in the ALTRIA mark. Complainant argues that the ALTRIA mark is the only distinctive term in the disputed domain name, which indicates that Respondent had actual knowledge of Complainant's mark and rights when the domain was registered. Although this claim that the distinctiveness of the resulting disputed domain name is evidence of the intentionality of the registrant is tenuous, given the entirety of the circumstances and the fact that the Respondent did not reply, the Panel finds in favor of Complaint that Respondent has acted intentionally with bad faith use and registration of the disputed domain name.
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.co> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 17, 2016
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