The Complainant is Philip Morris Products S.A. of Neuchâtel, Switzerland, represented by Boehmert & Boehmert, Germany.
The Respondent is Michal Kovrzek of Praha, Czech Republic. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with Ascio Technologies Inc. the "Registrar". 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 26, 2018. On January 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name . On January 29, 2018, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 31, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 20, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 21, 2018.
The Center appointed Pablo A. Palazzi as the sole panelist in this matter on March 6, 2018. 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 is Philip Morris Products S.A., a Swiss company established under the laws of Switzerland who is one of the leading international tobacco companies. The Complainant has been selling cigarette brand since 1972.
The Complainant developed and sold a number of smoke-free products, one of those is called IQOS, a controlled heating device into which a specially design tobacco product under the trademarks HEETS and HeatSticks are inserted and heated to generate a flavor nicotine-containing aerosol. Another smoke free product which the Complainant is commercializing is branded TEEPS. The only difference between IQOS and TEEPS is that the last one does not require an additional device for heating tobacco.
The Complainant is the owner of the following International Trademark Registrations, among others:
- TEEPS (word) No. 1338295 registered on September 27, 2016,
- HEETS (word/device) No. 1328679 registered on July 20, 2016,
- HETTS (word) No. 1326410 registered on July 19, 2016,
- IQOS (word) No. 1218246 registered on July 10, 2014,
- IQOS (device) No. 1329691 registered August 10, 2016,
- EUTU IQOS THIS CHANGES EVERYTHING (word) No. 16500605.
The Disputed Domain Name was registered on September 30, 2017.
The Disputed Domain Name resolves to a website that purports to be an online store offering the Complainant's products. 5. Parties' Contentions A. Complainant
The Complainant's contentions can be summarized as follows: Identical or confusingly similar
The Disputed Domain Name uses the Complainant's trademark in its entirety with the addition of the generic term "my", and the applicable Top-Level Domain ("TLD") ".store" and is therefore confusingly similar to the Complainant's TEEPS trademark. Rights or legitimate interests
The Complainant has not granted any licenses or other rights to use the trademark TEEPS in the Disputed Domain Name or to register any domain name which incorporates the Complainant's trademark.
The Respondent has no rights or legitimate interests with respect to the Disputed Domain Name. Registration and use in bad faith
The Respondent knew of the Complainant's TEEPS trademark when registering the Disputed Domain Name, since he started offering the Complainant's HEETS and IQOS products immediately after registering it. Furthermore, the term TEEPS is a purely imaginative term which has no inherent meaning.
In addition, the Respondent registered and used the Disputed Domain Name with the intention to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant's TEEPS trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of a product on the Respondent's website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name at issue in this case:
(i) The Domain Names 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
Based on the evidence submitted, the Panel finds that the Disputed Domain Name is confusingly similar to the Complaint's trademark TEEPS. The Disputed Domain Name wholly incorporates the Complainant's trademark as its only distinctive element. Furthermore, the Disputed Domain Name contains the Complainant's TEEPS trademark in its entirety, the addition of the term "my" does not change this finding since it is a descriptive word.
Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:
i. Before any notice to you of the dispute, your use of, 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 (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 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 at issue.
There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark. The Complainant has (prior) rights in the trademark which precede the Respondent's registration of the Disputed Domain Name.
The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name or that the Disputed Domain Name is used in connection with a bona fide offering of goods and services.
The Respondent had the opportunity to demonstrate his rights or legitimate interests, but he did not reply to the Complainant's contention.
As such the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Disputed Domain Name was registered in 2017; one year after the Complaint obtained its international registration for the trademark TEEPS. The fact that the Respondent started offering the Complainant's products at his website immediately after registering the Disputed Domain Name demonstrates that the Respondent was aware of the Complainant's TEEPS trademark when registering the Disputed Domain Name.
Furthermore, the Complainant has not licensed or otherwise permitted the Responder to use any of its trademarks or to register the Domain name incorporating its TEEPS trademark. Neither the Respondent is an authorized reseller of the Complainant's product.
The Respondent's website creates the impression that the products offered are provided by the Complainant and the content simulates an official store of the Complainant. Thus, the Internet users might have well been under the impression that it is a website created and operated by an official distributor or reseller of the Complainant.
The circumstances in the case before the Panel indicate that the Respondent was aware of the Complainant's trademark when registering the Disputed Domain Name and it has intentionally created likelihood of confusion with the Complaint's TEEPS trademark and website in order to attract Internet users for his own commercial gain.
Due to this conduct, it is obvious that the Respondent intentionally created likelihood of confusion with the Complainant's trademarks and website in order to attract Internet users for his own commercial gain, as required by paragraph 4(b)(iv) of the Policy.
Therefore, taking all circumstances into account and for all above reasons, the Panel concludes that the Respondent has registered and using the Disputed Domain Name 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 be transferred to the Complainant.
Pablo A. Palazzi
Sole Panelist
Date: March 20, 2018
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