The Complainant is Altria Group, Inc., Altria Group Distribution Company of Richmond, Virginia, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Privacydotlink Customer 3873725 of Grand Cayman, Overseas Territory of the United Kingdom / OFUNNE OBIAMIWE of Marina Del Rey, California, United States, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Uniregistrar Corp (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 20, 2019. On February 21, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 27, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on the same date providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 28, 2019.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 1, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 21, 2019. The Response was filed with the Center on March 20, 2019.
The Center appointed Evan D. Brown as the sole panelist in this matter on March 28, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is the parent company of four tobacco operating companies. It owns a number of trademark registrations for ALTRIA, including United States Reg. No. 3,029,629, issued on December 13, 2005. The Complainant asserts that it first used the ALTRIA mark in commerce on January 27, 2003.
The Respondent is critical of the Complainant’s goods and the purported negative health effects users of such products may suffer. It registered the disputed domain name on January 1, 2019 and claims that, among other things, it intended to sell the disputed domain name to medical experts or to attorneys litigating against the Complainant, for use in exposing the dangers of the Complainant’s products. The Respondent claimed that if it was unable to sell the disputed domain name, it would start a blog with links to articles it had collected about the Complainant’s products and their health effects, and the questionable marketing practices of the Complainant.
The disputed domain name resolves to a parking page displaying pay-per-click links. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademarks; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent principally asserts the following:
- It registered the disputed domain name after having checked the United States Patent and Trademark Office website to purportedly ensure there was no trademark conflict.
- It registered the disputed domain name because it "was astounded that [the Complainant] is posing as a health company when in fact, they are a DEATH company".
- Her goal was to try to sell the disputed domain name to medical experts, or to attorneys litigating against the Complainant, to use in exposing the dangers of the Complainant’s products.
- Alternatively, if it was unable to sell the disputed domain name, it would start a blog with links to articles it had collected about the Complainant’s products and their health effects, and the questionable marketing practices of the Complainant.
- If the Complainant truly was interested in health, it would have registered the disputed domain name a long time ago.
- It is preposterous for the Complainant to imagine it deserves the disputed domain name.
- No one “in their right mind” would confuse the Complainant with the disputed domain name.
- The Complainant has no rights or legitimate interests in respect of the disputed domain name.
- The disputed domain name has been registered and intended to be used for informational purposes to expose dubious attempts by the Complainant to pose as a healthcare company.
- It never contacted the Complainant about the disputed domain name, and never intended to. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely, that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has rights in the mark ALTRIA. The mark is subject to registrations that predate registration of the disputed domain name, and has been in use for many years. The disputed domain name contains the Complainant’s mark in its entirety and is in this manner identical or confusingly similar to the ALTRIA mark. The generic Top-Level Domain (“gTLD”) “.com” may be disregarded for the purpose of comparing the disputed domain name with the Complainant’s mark under paragraph 4(a)(i) of the Policy. Accordingly, the Panel finds in favor of the Complainant on this first element of the Policy. B. Rights or Legitimate Interests
The Complainant puts forth a number of arguments under this element:
- The Respondent is not commonly known by the disputed domain name.
- The Complainant has not licensed, authorized, or permitted the Respondent to register domain names incorporating the Complainant’s trademark.
- At the time of the filing of the Complaint, the Respondent was using a privacy WhoIs service.
- The Respondent is using the disputed domain name to redirect internet users to a website featuring links to third-party websites that have pay-per-click links, and this is not a bona fide offering of goods or services.
- The disputed domain name is being offered for sale for USD 28,999 – an amount that far exceeds the Respondent’s out-of-pocket expenses in registering the disputed domain name.
The Complainant has successfully established a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy instructs respondents on a number of ways they could demonstrate rights or legitimate interests (“you” and “your” in the following refers to the particular respondent):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent makes no argument to support that it has been commonly known by the disputed domain name, nor does it argue that it is making any use of the disputed domain name for any permissible purpose under the Policy that is without intent for commercial gain. On the latter point, the Respondent actually states the contrary – a deliberate desire to sell the disputed domain name to medical or legal professionals.
The Respondent’s only argument that resembles one that could apply to this second element under the Policy is derived generally from its stated intent to use (or to enable others to use) the disputed domain name for a website or blog that would provide information about the purported bad health effects of the Complainant’s products. But the Respondent’s assertions do not, in the Panel’s view, rise to the level of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Respondent only talks about her aspirations, without any evidence of any actual preparations having been taken. See Verizon Trademark Services LLC v. Kevin Hurley, Polaris Mediaworks,WIPO Case No. D2018-1786 (panel rejected the respondent’s arguments of demonstrable preparations where there were no invoices, receipts, or other indicators that efforts were undertaken).
The Complainant has satisfied this second element. C. Registered and Used in Bad Faith
The Respondent’s arguments make it clear it knew of the Complainant’s mark when it registered the disputed domain name. In the circumstances of this case, revealed in the facts discussed above, such a showing is sufficient to establish bad faith registration of the disputed domain name.
Bad faith use is clear from the Respondent’s activities of using the disputed domain name to provide a website enabling pay-per-click links. This conduct was, in the Panel’s view, an intentional attempt to attract, for commercial gain, Internet users to the website containing the pay-per-click links, by creating a likelihood of confusion with the Complainant’s ALTRIA mark as to the source, sponsorship, affiliation, or endorsement of such website. The Respondent also asserts that it was its intention to sell the disputed domain name on the basis of its value in relation to the Complainant’s mark, in excess of out-of-pocket costs. For these reasons, the Panel finds that the Complainant has successfully met this third Policy element. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, be transferred to the Complainant.
Evan D. Brown
Sole Panelist
Date: April 11, 2019
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