The Complainant is Altria Group, Inc. and Altria Group Distribution Company, United States of America (“United States” or “U.S.”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States / Wu Yu, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2021. On July 2, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2021, 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 July 6, 2021, 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 July 8, 2021. 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 July 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 29, 2021. The Center appointed Tobias Malte Müller as the sole panelist in this matter on August 4, 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 The Complaint is based on the following trademarks, applied for on or before the date of registration of the disputed domain name and consisting of or containing the verbal element ALTRIA, including: - U.S. registration No. 3,029,629 for the verbal mark ALTRIA, registered on December 13, 2005, for services in classes 35, 36, and 42; The disputed domain name was registered on March 7, 2021. It results from the undisputed evidence provided by the Complainant that the disputed domain name currently resolves to a parking website showing pay-per-click links to third-party websites. It additionally results from the undisputed evidence that the disputed domain name is offered for sale at a minimum price of EUR 800. 5. Parties’ Contentions A. Complainant Firstly, the Complainant points out that the disputed domain name is confusingly similar to the registered mark in which the Complainant has rights. In creating the disputed domain name, the Respondent has added the descriptive term “experience” to the Complainant’s ALTRIA trademark, thereby making the disputed domain name confusingly similar to the Complainant’s trademark. The fact that such term is closely linked and associated with the Complainant’s brand and trademark only serves to underscore and increase the confusing similarity between the disputed domain name and the Complainant’s trademark. Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Respondent does not own any registered rights in any trademarks, which comprise part or the entirety of the disputed domain name. Furthermore, the Complainant has not authorized the Respondent to use the ALTRIA marks as part of the disputed domain name. Finally, the Respondent is not commonly known as “altriaexperience” and is offering the disputed domain name for sale for an amount that far exceeds the costs for such a “.com” domain name. Thirdly, the Respondent’s registration and use of the disputed domain name constitutes – in the Complainant’s view – bad faith under several aspects: The disputed domain name is advertised for sale to the general public at a minimum price of EUR 800. Furthermore, the Respondent creates a likelihood of confusion with the Complainant and its trademarks by registering a domain that incorporates the Complainant’s ALTRIA trademark along with the related term “experience”, which demonstrates that the Respondent is using the disputed domain name to confuse unsuspecting Internet users looking for the Complainant’s services, and to mislead them as to the source of the domain name and website. In addition, the Respondent generates pay-per-click revenues by parking the website. Finally, the Respondent currently holds registrations for several other domain names that misappropriate the trademarks of other well-known brands and businesses. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs this Panel to “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 requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain name should be transferred or cancelled: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and The Panel is satisfied that the registrant of record for the disputed domain name is the Respondent and will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must first of all establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant is the owner of several trademark registrations consisting of or containing the verbal element ALTRIA, e.g., U.S. Registration No. 3,029,629 for the verbal mark ALTRIA, registered on December 13, 2005, for services in classes 35, 36, and 42, and U.S. Registration No. 3,073,900, for the figurative mark ALTRIA registered on March 28, 2006, for services in classes 35, 36, and 42. Many UDRP panels have found that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element (cf. section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). This Panel shares the same view and notes that the Complainant’s registered trademark ALTRIA is fully included in the disputed domain name and placed at the first position therein. The addition of the dictionary term “experience” does not prevent confusing similarity between the disputed domain name and the Complainant’s mark ALTRIA, which – the Panel concludes - is clearly recognizable within the disputed domain name (cf. Heaven Hill Distilleries, Inc. v. Super Privacy Service LTD c/o Dynadot / domain admin,WIPO Case No. D2021-0812). In the light of the above, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must secondly establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to a disputed domain name. In the Panel’s view, based on the undisputed allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name. First, it results from the Complainant’s uncontested evidence that the disputed domain name resolves to a website containing pay-per-click links and is publicly offered for sale at EUR 800. Such use cannot – in this Panel’s view – be qualified as a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy, since the ATRIA mark is a coined term with no dictionary meaning and the use of the disputed domain name appears intended to capitalize on the reputation and goodwill of the Complainant’s mark (cf. WIPO Overview 3.0 at section 2.9). In addition, the Respondent did not submit any evidence of bona fide use the disputed domain name. In particular, the Complainant’s uncontested allegations demonstrate that it has not authorized the Respondent’s use of the ALTRIA trademarks for registering the disputed domain name, which are confusingly similar. Furthermore, the Panel notes that there is no evidence in the record or WhoIs information showing that the Respondent might be commonly known by the disputed domain name in the sense of paragraph 4(c)(ii) of the Policy. In addition, the Panel notes that there is no evidence in the record either showing that the Respondent might be making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue pursuant to paragraph 4(c)(iii) of the Policy. In particular, the Panel is satisfied that the registered trademark ALTRIA is distinctive so that it is unlikely that the Respondent wanted to fairly use the disputed domain name consisting of this term. In addition, the disputed domain name is used, amongst others, for a parking page with commercial links. Such use is commercial, so that a legitimate noncommercial use is excluded from the outset. Finally, the nature of the disputed domain name, wholly incorporating the Complainant’s trademark and a descriptive term, carries a risk of implied affiliation and cannot constitute fair use as it effectively impersonates or suggests sponsorship or endorsement by the Complainant (cf. section 2.5.1 of the WIPO Overview 3.0). It is acknowledged that once the Panel finds a prima facie case has been established, as the Panel so finds here, the burden of production shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence, this Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant is therefore deemed to have satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith According to paragraph 4(a)(iii) of the Policy, the Complainant must thirdly establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, in particular, but without limitation, be evidence of the disputed domain name’s registration and use in bad faith. One of these circumstances is that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name (paragraph 4(b)(i) of the Policy). It is the view of this Panel that the Respondent has actually registered the disputed domain name primarily for the purpose of selling it either to the Complainant or to third parties, in particular to one of the Complainant’s competitors, for valuable consideration in excess of the documented out-of-pocket costs directly related to the disputed domain name. According to the Complainant’s uncontested allegations and evidence, the Respondent has offered the disputed domain name for sale to the public for a minimum price of EUR 800. This Panel finds that this sum is far in excess of any out-of-pocket costs directly related to the disputed domain name (see Skyscanner Limited v. New Ventures Services, Corp.,WIPO Case No. D2020-0498; Linatex Limited v. Yunkook Jung,WIPO Case No. D2019-1784). In addition, this finding of bad faith registration and use is further supported by the further circumstances resulting from the case at hand, which are the following: (i) the Respondent’s failure to submit a response or to provide any evidence of actual or contemplated good faith use; (ii) the implausibility of any good faith use to which the disputed domain name may be put; (iii) the Respondent hiding his identity behind a privacy shield; (iv) the disputed domain name resolving to a parking page with pay-per-click links (see section 3.5 of WIPO Overview 3.0); and (v) the Respondent being engaged in a pattern of conduct by holding registrations for other domain names including third party trademarks. In the light of the above the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy. 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 Tobias Malte Müller
- U.S. registration No. 3,073,900, for the figurative mark ALTRIA registered on March 28, 2006, for services in classes 35, 36, and 42.
(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.
Sole Panelist
Date: August 18, 2021
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