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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Altria Group, Inc. v. Altriax Corporation/ Sanni Tomiwa

Case No. D2011-0650

1. The Parties

Complainant is Altria Group, Inc. of Richmond, Virginia, United States of America, represented by Arnold & Porter LLP, United States of America.

Respondent is Altriax Corporation/ Sanni Tomiwa of Cincinnati, Ohio, United States of America.

2. The Domain Name and Registrar

The disputed domain name <altriax.com> (the “Domain Name”) is registered with LiquidNet Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2011. On April 13, 2011, the Center transmitted by e-mail to LiquidNet, Ltd. a request for registrar verification in connection with the Domain Name. On April 21, 2011, LiquidNet Ltd. transmitted by e-mail to the Center its verification response confirming that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 29, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 20, 2011.

The Center appointed Robert A. Badgley as the sole panelist in this matter on May 30, 2011. 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 has used the mark ALTRIA in connection with conducting shareholder and investor relations and administering employee benefit and pension plans. Complainant, which has used the ALTRIA mark in commerce since 2003, has secured federal service mark registrations for ALTRIA with the United States Patent and Trademark Office. Complainant also maintains a website at “wwww.altria.com”.

The Domain Name was registered on December 30, 2010. The Domain Name resolves to a website which offers, among other things, finance, logistics, and energy services. Complainant contends, and it is not refuted by Respondent, that some of the offerings at Respondent’s website are similar to those offered by Complainant.

By letter dated February 25, 2011, Complainant’s counsel sent a cease-and-desist letter to Respondent at the postal and e-mail addresses provided with the WhoIs information for the Domain Name. The posted letter was returned as undeliverable to that address. As respects the e-mail, Respondent received a phone call from a woman who said she had no knowledge of Respondent or the Domain Name. It is alleged, and not disputed, that the address shown on Respondent’s website is associated with a company totally unrelated to Respondent. It is also alleged, and undisputed, that no business is registered anywhere in the United States as Altriax Corporation.

5. Parties’ Contentions

A. Complainant

Complainant’s salient factual assertions are set forth above. Complainant asserts that it has satisfied the three elements of the Policy and is entitled to a transfer of the Domain Name.

B. Respondent

Respondent did not reply to Complainant’s contentions. However, Respondent submitted an informal e-mail on May 5, 2011, stating that: “the domain name was never hijacked and it was registered from the pool of available domain names. If they really needed, they ought to have registered and parked the domain previously”.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:

(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) 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.

A. Identical or Confusingly Similar

There is no question that Complainant has rights in the registered mark ALTRIA. The addition of the letter “x” to the mark does not sufficiently remove the confusing similarity between the Domain Name and the ALTRIA mark. See Piab AB v. EDCO USA, Inc., WIPO Case No. D2002-0059 (<piabx.net> held to be confusingly similar to PIAB mark).

Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.

Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122. Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor, WIPO Case No. D2003-0174, correctly observed: “A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a certified Response and hence did not effectively rebut any of Complainant’s assertions.

There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Name, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services. Despite operating a website which purports to hold Respondent out as a business, Respondent has not attempted in this proceeding or in prior communications with Complainant to explain it’s bona fide. The Panel finds there are none in connection with the Domain Name.

Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith” :

(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or

(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.

The Panel finds that Respondent is in “bad faith” under paragraph 4(b)(iv) of the Policy.

Specifically, the Panel concludes that Respondent more likely than not had Complainant’s ALTRIA mark in mind when registering the Domain Name. This conclusion is reached because the Domain Name fully incorporates the distinctive ALTRIA mark and merely adds the letter “x.” Further, some of the offerings at the website to which the Domain Name resolves overlap with the services offered by Complainant under the ALTRIA mark. The commercial content at Respondent’s website makes it reasonable to infer, particularly in the absence of any explanation by Respondent, that Respondent has intentionally sought to attract, for commercial gain, Internet users to Respondent’s site by creating a likelihood of confusion between the ALTRIA mark and the Domain Name.

Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <altriax.com> be transferred to Complainant.

Robert A. Badgley
Sole Panelist
Dated: June 13, 2011

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