WIPO Domain Name Decision D2019-0858 for iqosmadeni.com
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Philip Morris Products S.A. v. Eda Sert Case No. D2019-0858 1. The Parties
The Complainant is Philip Morris Products S.A. of Neuchâtel, Switzerland, represented by D.M. Kisch Inc., South Africa.
The Respondent is Eda Sert of Berlin, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with Realtime Register B.V. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2019. On April 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 17, 2019, 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 April 17, 2019, 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 April 17, 2019.
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 April 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 8, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 9, 2019.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on May 14, 2019. 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 Philip Morris Products S.A. is a company which is part of the group of companies affiliated to Philip Morris International Inc. Philip Morris International Inc. is one of the leading international tobacco companies, with products sold in approximately 180 countries.
The Complainant is selling smoke-free cigarettes under its IQOS brand and owns several international trademark registrations for IQOS including the followings:
- International Registration No. 1218246 for the trademark IQOS extended to Turkey, registered July 10, 2014, covering tobacco products and electronic cigarettes, in classes 9, 11 and 34;
- International Registration No. 1329691 for the trademark IQOS logo extended to Turkey, registered August 10, 2016, covering tobacco products and electronic cigarettes, in classes 9, 11 and 34;
The disputed domain name was registered on October 09, 2018, in the name of the Respondent who is a physical person domiciled in Berlin, Germany. The disputed domain name resolved to a website in Turkish offering the Complainant’s products for sale and it currently does not resolve to an active website. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is confusingly similar to the Complainant’s trademark IQOS and that the addition of the descriptive word “madeni” – which can be translated as metallic in English does not help to prevent the association between the disputed domain name and the Complainant’s trademark.
The Complainant considers that the Respondent has no rights or legitimate interests in respect of the disputed domain name, mainly because the Complainant has neither licensed nor otherwise authorized the Respondent to use its marks or to apply for or use any domain name incorporating the trademark IQOS. The Complainant further asserts that the conditions of Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 for a bona fide offering of goods and services by an authorized or non-authorized third party are not satisfied.
Finally, in addressing the question of registration and use of the disputed domain name in bad faith, the Complainant observes that the Respondent is well aware of the Complainant’s trademark considering that the Respondent is using the Complainant’s marketing material, including the humming bird logo and that the Respondent’s website clearly suggests that the website belongs to the Complainant or is an official affiliated dealer endorsed by the Complainant. In this regard, the Respondent has used privacy shield in order hide its identity.
The fact that the website does not provide any information on the true identity of the website provider clearly shows that the Respondent intentionally creates the impression that the products offered on the Respondent’s website are provided by the Complainant or at least an official dealer by misleading users on the source of the website and thereby attract, for commercial gain, Internet users to the website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the disputed domain name be transferred to the Complainant:
(a) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(c) the disputed domain n