URS DEFAULT DETERMINATION

Philip Morris Products S.A. v. Privacy Protection
Claim Number: FA2003001888379

DOMAIN NAME

<iqosmv.online>

PARTIES

	Complainant: Philip Morris Products S.A. of Neuchâtel, Switzerland
	Complainant Representative: DM KISCH INC Andrew Papadopoulos of Sandton, II, South Africa

	Respondent: Privacy Protection / Protection of Private Person Privacy Protection of Moscow, II, RU

REGISTRIES and REGISTRARS

	Registries: DotOnline Inc.
	Registrars: Registrar of Domain Names REG.RU, LLC

EXAMINER

	The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
	Saravanan Dhandapani, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: March 16, 2020
	Commencement: March 16, 2020
	Default Date: March 31, 2020
	Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

	Procedural Findings:
		Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <iqosmv.online>. No domain name is dismissed from this Complaint.
		Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <iqosmv.online>. No domain name is dismissed from this Complaint.

Findings of Fact: I. The case of the Complainant is as follows: a) Complainant is an international tobacco company, with products sold in more than 180 markets worldwide. IQOS, an innovative reduced risk tobacco device, was launched in Japan, in 2014. Today due to extensive international sales and marketing efforts, in accordance with local laws, the IQOS product is sold in around 52 markets. IQOS is an electronic heating device into which specially designed tobacco sticks (branded ï¿½HEETSï¿½ or ï¿½HeatSticksï¿½) are inserted and heated togenerate a flavorful nicotinecontaining aerosol. ï¿½IQOSï¿½ and ï¿½HEETSï¿½ are not ordinary dictionary words or generic. Complainant owns numerous trademark registrations for the distinctive trademarks IQOS and HEETS, covering numerous jurisdictions, including Swiss Registration IQOS No. 660918 (Exhibit A). The IQOS Trademark is registered with the Trademark Clearinghouse (Exhibit B) which is sufficient to prove actual use of the trademark (URS Rule 8.1.2.1). Respondent registered the Disputed Domain on 27/01/2020. The Disputed Domain is used for a website advertising andselling the Complainantï¿½s IQOS and HEETS products. The website holds out to be an official endorsed dealer byprominently using the Complainantï¿½s IQOS trademark in the domain name and at the top of the website, where internetusers usually expect to find the name of the online shop or website owner. The website also uses the Complainantï¿½s copyright protected product images and official marketing materials. The website reveals no information regarding the identity of the website provider nor does it acknowledge the Complainant as the real brand owner. This leaves internet users under the false impression that the website is owned by the Complainant or one of its official licensees (Exhibit C for screenshots of the website). b) The Disputed Domain identically adopts the Complainantï¿½s registered trademark IQOS together with a merely generic supplement (URS Rule 1.2.6.1). c) The Respondent and the website provided under the Disputed Domain are not in any way affiliated to the Complainant nor has the Complainant authorized Respondentï¿½s registration and use of the Disputed Domain (URS Rule 1.2.6.2). d) By registering a domain name comprising of the Complainantï¿½s IQOS trade-mark and prominently using the Complainantï¿½s IQOS trademark and copyright protected marketing material on the website, the Respondent is attempting to attractinternet users looking for Complainantï¿½s goods, and purposefully mis-leading users as to the source of the website. Byusing Complainantï¿½s IQOS trademark in the Disputed Domain and hiding the identity of the website provider, Respondent is purposefully misleading users as to the source, sponsorship, or endorsement of the offerings under the Disputed Domain. Such use of the IQOS trademark by the Respondent while it conceals its identity,does not constitute a ï¿½bona fideofferingï¿½ pursuant to the ï¿½OKI Data Principlesï¿½ and unquestionably demonstrates bad faith. Respondent is intentionallyusing the Complainantï¿½s IQOS trademark to confuse and attract customers to its site.By registering the Disputed Domain, which wholly adoptsthe Complainantï¿½s IQOS trademark and falsely suggests an affiliation with the Complainant, it is clear that Respondent is illegitimately and directly targeting the Complainant. (URS Rule 1.2.6.3).

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The Complainant has proved by documentary evidence that they are the registered owner of trademark ï¿½IQOSï¿½ under various classifications. As noted, the disputed domain name <iqosmv.online> composes ï¿½iqosï¿½, ï¿½mvï¿½ and ï¿½.onlineï¿½. Thus, the letters ï¿½iqosï¿½ in disputed domain name is identical to Complainantï¿½s registered mark ï¿½IQOSï¿½. The ï¿½mvï¿½ and ï¿½.onlineï¿½ in disputed domain name, being a generic code Top-Level Domain name (gTLD), are suffix. Those suffixes are non-distinctive and are incapable of differentiating the disputed domain name from the Complainantï¿½s registered trademark. Based on the ï¿½IQOSï¿½ being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

The Complainant owns registered mark ï¿½IQOSï¿½ under various classifications. In such case, the burden lies on the Respondent to prove that he has legitimate rights and/or interests in the disputed domain name. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain name. Hence, the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating ï¿½IQOSï¿½. Thus, the Panel Examiner is of the firm view that the Respondent is using a confusingly similar domain name. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continues to be made in full knowledge of the Complainantï¿½s prior rights in the ï¿½IQOSï¿½ registered mark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to irresistible determination that (i) the disputed domain name is identical to the Complainantï¿½s ï¿½IQOSï¿½ trademark; (ii) the Respondentï¿½s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainantï¿½s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus, the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith.

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

iqosmv.online

Saravanan Dhandapani
Examiner
Dated: April 1, 2020

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