The Complainant is Altria Group, Inc. and Altria Group Distribution Company, United States of America (“United States”, “USA” or “U.S.”) (hereinafter “Complainant”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Emerson Terry, United States (hereinafter “Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2021. On January 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 7, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the disputed domain name. 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 Respondent of the Complaint, and the proceedings commenced on January 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 10, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 15, 2021. The Center appointed M. Scott Donahey as the sole panelist in this matter on February 24, 2021. 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 Complainant is the parent company of three tobacco companies: Philip Morris USA Inc., the manufacturer of Marlboro cigarettes; U.S. Smokeless Tobacco Company LLC, the world’s leading manufacturer of moist smokeless tobacco; and, John Middleton Co., the manufacturer of Black & Mild brand of cigars. Complainant has continuously used its ALTRIA trade name and trademark in interstate commerce for numerous years. Complainant is the owner of the domain name Complainant is the registrant a number of ALTRIA trademarks registered with the United States Patent and Trademark Office (“USPTO”), for example registration number 3,029,629, registered on December 13, 2005. Complaint Annex 1. Complainant has used its trademark in domain names and in the promotion of its numerous businesses. Respondent registered the disputed domain name on October 16, 2020 (Complaint, Annex 2), some fifteen years after Complainant had registered its ALTRIA trademark, which Complainant has used continuously in its businesses since its registration and indeed prior to the time it first registered the trademark with the USPTO. Respondent is using the disputed domain name to redirect Internet users to a website, which features links to third-party websites in a pay-per-click operation which undoubtedly generate revenue for Respondent. Complaint, Annex 3. Indeed, Respondent has established MX records and linked several subdomains to the disputed domain name. The subdomains prompt for login credentials, which give rise to the possibility that Respondent intends or intended to use the disputed domain name to send fraudulent emails as part of a phishing scheme. Complaint, Annex 7. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is confusingly similar to its ALTRIA registered trademark. Complainant asserts that Respondent has no rights or legitimate interest in respect of the disputed domain name. Finally, Complainant alleges that the disputed domain name has been registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings “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.” Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and, (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and, (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of Complainant’s trademark ALTRIA (registered well before Respondent registered the disputed domain name) to which Respondent has added an additional “r”, coupled with the English word “group”. Complainant’s business name consists of its ALTRIA trademark followed by the English word “Group,” signifying its group of three tobacco related businesses which are companies within the Altria Group operated by Complainant. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, noting also the factual background as set out above, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that the Complainant has established such prima facie case and that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith Respondent has used the disputed domain name to resolve to a web site at which Respondent has posted pay-per-click links. When the links are clicked on by Internet users, such users are taken to third-party web sites whose owners typically pay Respondent a sum for bringing Internet users to the third-party site. This compensation scheme is referred to as a “pay-per-click” operation. Oftentimes the third-party web site owners in such schemes are competitors of the entity whose trademark is being used as part of the web site name, which lures Internet users into the scheme. While this is not the case here, as there are such paid links nonetheless (albeit going to seeming random third parties) there exists another scheme. Respondent has established MX records and linked several subdomains to the disputed domain name. MX records coupled with the addition of multiple subdomains, which prompt for login credentials, give rise to the strong possibility that Respondent intended or intends to use the disputed domain name to send emails as part of a fraudulent phishing scheme. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 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, M. Scott Donahey
Sole Panelist
Date: March 10, 2021
Full & Egal Universal Law Academy