The Complainants are Altria Group, Inc. and Altria Group Distribution Company, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2019. On December 20, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 23, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 January 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 29, 2020. The Center appointed W. Scott Blackmer as the sole panelist in this matter on February 4, 2020. 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 Altria Group, Inc. (“Altria Group”) is a business corporation organized under Virginia law and headquartered near Richmond, Virginia, United States. Its stock is listed on the New York Stock Exchange. The Complainant is a leading producer of tobacco, cigarettes, e-cigarettes, and related products sold in the United States and worldwide. The Complainant Altria Group Distribution Company (“AGDC”) is a wholly owned subsidiary, also organized as a Virginia corporation, that distributes tobacco products and owns relevant trademarks licensed within the Altria Group. The Complainants operate a principal website at “www.altria.com”. The Complainants also use the domain name Previously known as Philip Morris Companies, Inc., the Complainant Altria Group was rebranded in 2003 and has used ALTRIA marks since then in connection with tobacco production, distribution, sales, and consumer engagement and related services, as well as charitable services such as providing scholarships, various financial services, and providing information about tobacco and underage tobacco prevention. Relevant United States registered trademarks held by the Complainants include the following: Mark Registrant Registration Number Registration Date ALTRIA (standard characters) Altria Group 3029629 December 13, 2005 ALTRIA (word and design) Altria Group 3073900 March 28, 2006 ALTRIA (standard characters) AGDC 4815825 September 22, 2015 ALTRIA (word and design) AGDC 4820612 September 29, 2015 The Registrar reports that the Domain Name was registered in the name of the Respondent, which is a domain name privacy service, on October 28, 2019, with an address “c/o” the Registrar. When notified of this dispute, the Registrar failed to identify any underlying registrant, and there has been no reply to any communication from the Complainant or the Center. The Domain Name resolves to a landing page of “sponsored listings”, third-party pay-per-click (“PPC”) advertising links relating to employee benefits and health insurance. A disclaimer at the bottom of the page reads as follows: “The Sponsored Listings displayed above are served automatically by a third party. Neither the service provider nor the domain owner maintain any relationship with the advertisers. In case of trademark issues please contact the domain owner directly (contact information can be found in whois).” 5. Parties’ Contentions A. Complainant The Complainant asserts “longstanding” common law rights in ALTRIA as well as the trademark registrations listed above and argues that the Domain Name is confusingly similar to the ALTRIA mark. The Complainant contends that the unknown Respondent has no evident rights or legitimate interests in the Domain Name, and the false association between its coined mark and slightly misspelled “voluntary benifits” [sic] is meant to mislead Internet users familiar with the corporate group that does, in fact, employ some 8,300 persons with employee benefits. The Complainant argues that the misdirection of visitors to a PPC landing page for commercial gain represents bad faith, as does the Respondent’s concealment behind a domain privacy registration and refusal to respond to communications. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. 6.1 Preliminary Matter: Multiple Complainants The Rules, paragraph 3(c), contemplate that a complaint may relate to more than one domain name, provided that the domain names are registered by the same person, while paragraph 10(e) also gives UDRP panels the authority to consolidate multiple domain name disputes. In assessing whether a complaint may be filed by multiple complainants, as in this proceeding, UDRP panels consider whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1. Both Complainants in this instance are part of the same corporate group, using ALTRIA marks to which the Domain Name is confusingly similar. The Panel finds efficiency, and no prejudice, in allowing the Complaint to proceed with both Complainants. 6.2 Substantive Issues A. Identical or Confusingly Similar The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview 3.0, section 1.7. The Complainants hold registered ALTRIA trademarks, so it is unnecessary to assess their claims to common law marks, which would require further evidentiary support. The Domain Name incorporates the ALTRIA mark in its entirety, and the addition of dictionary terms (correctly or incorrectly spelled) does not avoid confusing similarity. WIPO Overview 3.0, section 1.7. The generic Top-Level Domain (“gTLD”) “.com” “is viewed as a standard registration requirement” and as such is normally disregarded under the first element. WIPO Overview 3.0, section 1.11.2. Accordingly, the Panel concludes that the Complainants have established the first element of the Complaint. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is 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. Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant has demonstrated trademark rights, a lack of permission to incorporate the Complainant’s mark in the Domain Name, and the Respondent’s failure to use the Domain Name for relevant commercial or noncommercial purposes. “Altria” appears to be a coined term, and the Respondent has not come forward with any legitimate interests to justify using the Complainant’s trademark for a PPC landing page steering Internet users to third-party insurance and employee benefits sites. The Panel concludes that the Complainant prevails on the second element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following cited by the Complainant (in which “you” refers to the registrant of the domain name): “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” The Complainant’s mark is not a dictionary word, and the record shows that it had been well established online and nationally over a period of some 16 years by the time the Domain Name was registered. Moreover, the entire phrase that comprises the Domain Name appears to represent an instance of typosquatting, as it misspells the word “benefits” and so differs by a single letter from a domain name actually used by the Complainants for their employees and retirees. The Respondent parked the Domain Name for PPC advertising, which accords with the example of bad faith outlined in paragraph 4(b)(iv). The Panel notes that this particular Domain Name also carries the risk of being used for fraudulent fishing schemes directed at the Complainant’s employees and retirees. While there are legitimate reasons to use a domain privacy service, the Respondent’s continuing concealment and failure to reply to communications in the context of this dispute supports an inference of bad faith. The Panel finds on this record that the Respondent registered and used the Domain Name in bad faith and concludes that the Complainant has established the third element of the Complaint. 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 Domain Name W. Scott Blackmer
Sole Panelist
Date: February 17, 2020
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