ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Philip Morris Products S.A. v. hosein zaferani Case No. D2023-3108 1. The Parties The Complainant is Philip Morris Products S.A., Switzerland, represented by D.M. Kisch Inc., South Africa. The Respondent is hosein zaferani, Iran (Islamic Republic of). 2. The Domain Name and Registrar The disputed domain name
is registered with CSL Computer Service Langenbach GmbH dba Joker.com (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 19, 2023. On July 20, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 21, 2023, 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 (Private Registration) and contact information in the Complaint. The Center sent an email communication to the Complainant on July 24, 2023, 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 26, 2023. 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 August 9, 2023. In accordance with the Rules, paragraph 5, the due date for Response was August 29, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 30, 2023. The Center appointed Adam Taylor as the sole panelist in this matter on September 12, 2023. 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. page 2 4. Factual Background The Complainant is part of the group of tobacco companies affiliated with Philip Morris International, Inc. Amongst other things, the group produces tobacco products branded "Heets" or "HeatSticks", that are designed to be inserted into another of the Complainant's products, "IQOS", a heating device which the Complainant describes as a "Reduced Risk Product". There are approximately 19.1 million customers using the IQOS system worldwide. The Complainant owns many trade marks for IQOS including International Registration No. 1218246, registered on July 10, 2014, in classes 9, 11, and 34. The disputed domain name was registered on May 30, 2023. The disputed domain name has been used for a website in Persian that was branded "aloIQOS.com", included the Complainant's logo, and purported to offer the Complainant's products for sale as well as those of its competitors. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: (i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; (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. A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trade mark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trade mark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The Panel finds the entirety of the IQOS mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is identical or confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. page 3 While the addition of other terms (here, "alo") may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the disputed domain name and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Given the incorporation of the Complainant's trade mark in the construction of the disputed domain name, which resolves to a website of an allegedly commercial nature, offering both the Complainant's and competitors' goods without any disclaimer, the Panel finds that the nature of the disputed domain name cannot constitute fair use and does not confer rights or legitimate interests upon the Respondent. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In the present case, the Panel considers that the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant's trade mark including in connection with the alleged sale of both the Complainant's and competing products in accordance with paragraph 4(b)(iv) of the Policy. Not only does the disputed domain name include the Complainant's distinctive mark, but the Respondent has used the disputed domain name for a website that creates the impression that it is officially associated with the Complainant including by prominent use of the Complainant's mark/logo. Based on the available record, the Panel finds the third element of the Policy has been established. page 4 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. /Adam Taylor/ Adam Taylor Sole Panelist Date: September 27, 2023
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