Altria Group, Inc. and Altria Group Distribution Company v. Deborah Gowrie
Claim Number: FA1605001674264
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 Deborah Gowrie (“Respondent”), Connecticut, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altriamarijuana.us>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 10, 2016; the Forum received payment on May 12, 2016.
On May 10, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <altriamarijuana.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On May 13, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 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@altriamarijuana.us. Also on May 13, 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 June 8, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 to the usTLD Dispute Resolution Policy (“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 usTLD Policy, usTLD 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 contends as follows:
Complainant has rights in the ALTRIA mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,029,629, registered Dec. 13, 2005).
Respondent’s <altriamarijuana.us> domain name is confusingly similar to the ALTRIA mark because it contains the mark, along with the generic term “marijuana” and the country-code top-level domain (“ccTLD”) “.us.”
Respondent is not commonly known by the <altriamarijuana.us> domain name, as the available WHOIS information lists “Deborah Gowrie” as Registrant. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain resolves to an inactive website.
Respondent uses the <altriamarijuana.us> domain name in bad faith because the domain resolves to an inactive website. Respondent registered the domain in bad faith because it did so while aware of Complainant’s rights in the ALTRIA mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, in correspondence with the domain name dispute resolution provider, Respondent stated that “They can have the domain names.”
Complainant has rights in the ALTRIA mark as evidenced by its registration of such mark with the USPTO.
The at-issue domain name is confusingly similar to Complainant’s ALTRIA trademark.
Respondent unequivocally consents to transferring the at-issue domain name to Complainant.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
Preliminary Issue: Multiple Complainants
There are two Complainants in the instant proceeding. Paragraph 3(a) of the Rules provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint . . . .” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Complainant Altria Group Distribution Company is a wholly owned subsidiary of Complainant Altria Group, Inc. The Panel therefore finds that the Complainants (elsewhere herein referred to collectively as Complainant) have a sufficient nexus to each other and to the matters complained of such that they shall be treated as if a single entity. See Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003) (treating the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names); see also, Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004) (finding a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark).
Preliminary Issue: Consent to Transfer
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 15(a) of the Rules thus permits a panel to grant a complainant’s requested relief without deference to Policy ¶¶4(a)(ii) or 4(a)(iii) when a respondent consents to such relief. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant. . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”)
In the instant case there is a clear indication that Respondent agrees to transfer the at-issue domain name to Respondent. In relevant correspondence Respondent tells the Forum that “[Complainant] can have the domain names.” Therefore, the Panel follows its rationale set out in Homer TLC, Inc. v. Jacek Woloszuk, FA613637 (Forum May 17, 2015), as well as in other similarly reasoned decisions where the respondent likewise agreed to transfer the at-issue domain name to the complainant.
As more fully discussed in the cases referenced above, as a necessary prerequisite to Complainant obtaining the requested relief, even where Respondent consents to such relief, Complainant must nevertheless demonstrate that it has rights in a mark that is confusingly similar or identical to the at-issue domain name. Here, Complainant’s ownership of a USPTO trademark registration for the ALTRIA trademark shows its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO). Additionally, the differences between the at-issue <altriamarijuana.us> domain name and Complainant’s ALTRIA trademark are insufficient to distinguish one from the other for the purposes of the Policy as the at-issue domain name contains Complainant’s entire ALTRIA trademark followed by the descriptive term “marijuana” with the country-code-top-level domain name “.us” appended thereto. See Omnitel Pronto Italia S.p.A. v. Bella, D2000-1641 (WIPO Mar. 12, 2001) (finding that the contested <omnitel2000.com> domain name is confusingly similar to the OMNITEL trademark); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
In light of the foregoing, Respondent’s express consent to transfer the confusingly similar at-issue domain name in response to the Complaint compels the Panel to order that Respondent’s <altriamarijuana.us> domain name be transferred to Complainant. Furthermore, the Panel finds no reason to provide further analysis regarding paragraphs 4(a)(ii) or 4(a)(iii) of the Policy.
Having concluded that Respondent consents to Complainant’s request that the domain name be transferred to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <altriamarijuana.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 13, 2016
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