Complainant is Philip Morris Products S.A., Switzerland, represented by D.M. Kisch Inc., South Africa.
Respondent is Mehmet Cam, Turkey.
The disputed domain name <istanbuliqosplatformu.com> (the “Disputed Domain Name”) is registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2020. On March 24, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 25, 2020, 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 Complainant on March 27, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 30, 2020.
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 Respondent of the Complaint, and the proceedings commenced on March 31, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 20, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 21, 2020.
The Center appointed Scott R. Austin as the sole panelist in this matter on April 29, 2020. 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.
Complainant states in its Complaint, and provides evidence in the respective Annexes attached to its Complaint sufficient to support that:
1) Located in Switzerland, Complainant is part of the group of companies affiliated with Philip Morris International Inc. (“PMI”)., an international tobacco company, with tobacco and smoke-free products sold in approximately 180 countries.
2) Complainant has been “transforming its business from combustible cigarettes to Reduced Risk Products (or ‘RRPs’, which PMI defines as products that present, are likely to present, or have the potential to present less risk of harm to smokers who switch to those products versus continued smoking)”;
3) “One of these RRPs developed and sold by Complainant is called IQOS” (the “IQOS Mark”), which identifies “a precisely controlled heating device into which specially designed tobacco products under the brand names ‘HEETS’ or ‘HeatSticks’ are inserted” (the “IQOS System”);
4) Complainant owns various word and design registrations for the IQOS Mark around the world, including in Turkey, where the Respondent appears to be located;
5) Complainant has provided in the Annexes attached to its Complaint lists of the registered trademarks on which its Complaint is based, along with copies of the trademark certificates for the IQOS Mark in a number of jurisdictions, including but not limited to, the following:
a) International Registration No. 1218246, IQOS (word), registered on July 10, 2014, in classes 9, 11, and 34, designating Antigua and Barbuda, Albania, Armenia, Bosnia and Herzegovina, Bahrain, Bonaire, Saint Eustatius and Saba, Belarus, China, Colombia, Cuba, Curaçao, Algeria, Egypt, European Union, Georgia, Israel, India, Iceland, Kyrgyzstan, Kazakhstan, Morocco, Monaco, Republic of Moldova, Montenegro, North Macedonia, Mongolia, New Zealand, Oman, Philippines, Serbia, Sint Maarten, Thailand, Tunisia, Turkey, Ukraine, Viet Nam; and
b) International Registration No. 1338099 ,
, (device) registered on November 22, 2016, in class 35, designating Albania, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Bahrain, Belarus, China, Colombia, Algeria, Egypt, European Union, Georgia, Israel, India, Iceland, Japan, Republic of Korea, Kazakhstan, Morocco, Monaco, Montenegro, Mexico, Norway, New Zealand, Oman, Philippines, Serbia, Russian Federation, Singapore, Turkey, Ukraine, United States of America.
6) The IQOS Mark products have “been almost exclusively distributed through Complainant’s official IQOS stores and websites and selected authorized distributors and retailers”;
7) The Disputed Domain Name was registered on January 15, 2020, and resolved to a commercial website “selling and offering the Complainant’s IQOS Mark products” which website “is provided in Turkish”, “indicat[es] all prices in Turkish lira (₺) currency, as well as presenting the designation ‘İstanbul İçi Aynı Gün Teslim, Sizden kurye öncesi eft isteyen’ (informal translation to ‘Same Day Delivery in Istanbul’)”, which “clearly indicates that the Website is directed to Turkey”, where the Respondent resides;
8) “Complainant’s IQOS System is not currently sold in Turkey”.
The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights because:
a) “Complainant is the registered owner of the IQOS trademark in numerous jurisdictions, including, but not limited to Turkey”;
b) “[T]he test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the Disputed Domain Name to assess whether the mark is recognizable within the Disputed Domain Name”;
c) “The Disputed Domain Name reproduces the IQOS trademark in its entirety, in addition to the geographical indication ‘istanbul’ and non-distinctive and descriptive word ‘platformu’ (informal translation ‘platform’)”;
d) “the applicable Top Level Domain (‘TLD’) in a domain nameis viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”;
e) “Any [I]nternet user when visiting a website provided under the Disputed Domain Name [<]istanbuliqosplatformu.com[>] will reasonably expect to find a website commercially linked to the owner of the IQOS trademarks”:
f) The false association created by the use of the IQOS Marks “is exacerbated by the use of the Complainant’s official product images without the Complainant’s authorization”;
Respondent has no rights or legitimate interests in the Disputed Domain Name because:
a) “The Respondent is not known or in any way related to the Complainant or any PMI affiliate and is not authorized to use the IQOS trademarks”;
b) “The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register a domain name incorporating its IQOS trademark”;
c) Contrary to making a legitimate non-commercial or fair use of the Domain Name, “Respondent’s behaviour shows a clear intent to obtain an unfair commercial gain, with a view to misleadingly diverting consumers or to tarnish the trademarks owned by the Complainant”;
d) “Respondent is not an authorized distributor or reseller of the IQOS System”;
e) Respondent fails to meet the “Oki Data Test” under the case Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 because “the use of a domain name cannot be ‘fair’ if it suggests an affiliation with the trademark owner”;
f) “The Website includes no information regarding the identity of the provider” and, therefore, “further serves to perpetuate the false impression of an official commercial relationship between the Website and the Complainant”; and
g) Respondent’s “online shop provided under the Disputed Domain Name creates the false impression that the Complainant has officially introduced the IQOS System into the Turkish market”, where it is not currently sold by Complainant.
The Disputed Domain Name has been registered and are being used in bad faith because:
a) “Respondent knew of the Complainant’s IQOS trademark when registering the Disputed
Domain Name”;
b) “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 registered IQOS trademark […]” constituting registration and use in bad faith pursuant to paragraph 4(b)(iv) of the Policy;
c) “Respondent’s purported recent involvement in the bad faith registration and use of the domain name [involved in a separate UDRP dispute] shows a pattern of bad faith conduct”;
d) “By reproducing the Complainant’s registered trademark in the Disputed Domain Name and the title of the Website, the Respondent’s Website clearly suggests the Complainant or an affiliated dealer of the Complainant as the source of the Website, which it is not. This suggestion is further supported by the Respondent’s use of the Complainant’s official product images”; and
e) “Respondent is using a privacy protection service to hide its true identity may in itself constitute a factor indicating bad faith.”
The Respondent did not reply to the Complainant’s contentions.
Respondent’s default, however, does not automatically result in a decision in favor of Complainant. Complainant must establish each of the three elements required by paragraph 4(a) of the Policy. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states:
“Does a respondent’s default/failure to respond to the complainant’s contentions automatically result in the complaint succeeding?
Noting the burden of proof is on the complainant, a respondent’s default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true.”
Thus, although in this case Respondent has failed to respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, e.g., The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
Pursuant to the Policy, paragraph 4(a), Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and are being used in bad faith.
The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See section 4.2, WIPO Overview 3.0.
Preliminary Issue: Language of the Proceeding
In the instant proceeding, Complainant, believed that the applicable registration agreement was in Turkish and submitted a request that the language of these proceedings be in English and provided argument supporting its request in its Complaint submitted in English. The concerned Registrar has confirmed that English is in fact the language of the registration agreement. Complainant’s request, therefore, is rendered moot, as the Complaint is in the language of the applicable registration agreement, and therefore, the appropriate language of this proceeding.
To prove this element, Complainant must have trade or service mark rights and the disputed domain name must be identical or confusingly similar to Complainant’s trade or service mark.
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Moreover, “[n]oting in particular the global nature of the Internet and Domain Name System, the jurisdiction(s) where the trademark is valid is not considered relevant to panel assessment under the first element. […] the filing/priority date, date of registration, and date of claimed first use, are not considered relevant to the first element test. These factors may however bear on a panel’s further substantive determination under the second and third elements”. WIPO Overview 3.0, section 1.1.2. The Panel notes here Complainant’s evidence submitted of registration of the IQOS Mark in Turkey, establishing trademark rights in the country where Respondent resides, which is considered in more detail under sections 6B and 6C below for the Panel’s determination under the second and third elements.
Based upon the numerous trademark registrations cited by Complainant, as well as supporting documents, the Panel finds that Complainant has established trademark rights in and to its IQOS Mark used by Complainant and its affiliates in connection with, inter alia, the sale of its IQOS System and related tobacco and smoke free products.
The Panel also finds, based on the registration evidence submitted by Complainant, that its rights in its famous IQOS Mark existed and were used prior to the registration of the Disputed Domain Name.
Having met its burden for established trademark rights in the IQOS Mark, Complainant next contends that the Disputed Domain Name is identical or confusingly similar to Complainant’s IQOS Mark because the “Disputed Domain Name reproduces the IQOS trademark in its entirety, in addition to the geographical indication ‘istanbul’ and non-distinctive and descriptive word ‘platformu’ (informal translation ‘platform’)”.
For the Disputed Domain Name to be found identical or confusingly similar the IQOS Mark, the relevant comparison is with the second-level portion of the Disputed Domain Name, in this case “istanbuliqosplatformu”, as it is well established that the generic Top-Level Domain (“gTLD”), in this case “.com” may generally be disregarded for this purpose. See WIPO Overview 3.0, section 1.11 (the gTLD as technical requirement for domain name registration is disregarded under the confusing similarity test).
Previous UDRP panels have held “the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy”. Oki Data Americas, Inc. v. ASD, Inc., supra.
The Panel agrees and notes that section 1.7 of the WIPO Overview 3.0 provides: “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 trademark and the disputed domain name to assess whether the mark is recognizable within the Disputed Domain Name.”
The Panel finds Complainant’s IQOS Mark is wholly incorporated into and clearly recognizable within the Disputed Domain Name, rendering the Disputed Domain Name confusingly similar to Complainant’s IQOS Mark in which Complainant has established trademark rights.
Accordingly, the Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
Under this second element of the Policy, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate evidence, a complainant is generally deemed to have satisfied the second element under the UDRP. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Respondent here has failed to appear to present any evidence of its rights or legitimate interests in the Disputed Domain Name.
For the following reasons the Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the Disputed Domain Name.
First, Complainant asserts that “The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register a domain name incorporating its IQOS trademark”.
Prior UDRP panels under the Policy have found that “[i]n the absence of any license or permission from the Complainant to use its trademark, no actual or contemplated bona fide or legitimate use of the Disputed Domain Name could reasonably be claimed”. See Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875; Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055 (“in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by Respondent.”); see also Six Continents Hotels, Inc. v. Patrick Ory, WIPO Case No. D2003-0098 (“There is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to the mark. Consequently, the Panel concludes that the Respondent has no rights nor legitimate interests in the Domain Name given there exists no relationship between the Complainant and the Respondent that would give rise to any license, permission or authorization by which the Respondent could own or use the Domain Name.”).
The Panel finds that Respondent has neither any connection with Complainant, nor has Respondent been authorized or licensed by Complainant to use and register the IQOS Mark or to register any domain name incorporating Complainant’s IQOS Mark.
Complainant next contends Respondent is not commonly known by either the Disputed Domain Name or the IQOS Mark, in accordance with paragraph 4(c)(ii) of the Policy. Complainant asserts and the WhoIs record submitted in the Annex to the Complaint supports that, “[t]he Respondent is not known or in any way related to the Complainant or any PMI affiliate and is not authorized to use the IQOS trademarks”. The Panel notes that Respondent does not resemble the Disputed Domain Name.
The Panel finds upon review of the record and evidence submitted by Complainant that Respondent is not commonly known by the Disputed Domain Name.
Since Respondent elected to submit no evidence in these proceedings, there is no evidence from Respondent to the contrary, i.e., that Respondent has been authorized or licensed to use Complainant’s IQOS Mark or is commonly known by the Disputed Domain Name.
It is generally regarded as prima facie evidence of no rights or legitimate interests if a complainant shows that the disputed domain name is identical or confusingly similar to the complainant’s trademark, that the respondent is not commonly known by the disputed domain name, and that the complainant has not authorized the respondent to use its mark (or an expression which is confusingly similar to its mark), whether in the disputed domain name or otherwise. See Roust Trading Limited v. AMG LLC, WIPO Case No. D2007-1857; see also Marriott International, Inc. v. Thomas, Burstein and Miller, WIPO Case No. D2000-0610 (no rights or legitimate interests when there is no evidence that respondent is commonly known by the domain name).
The Panel accepts Complainant’s contentions that Respondent is not commonly known by the Disputed Domain Name and that Respondent has never been authorized by Complainant to use Complainant’s IQOS Mark. The Panel is therefore satisfied that Complainant has provided sufficient prima facie evidence that Respondent has no rights or legitimate interests in the Disputed Domain Name.
Complainant next contends that “Respondent’s website is clearly purporting to be an official online retailer of the Complainant’s IQOS System in Turkey by using the Complainant’s IQOS trademark in the Disputed Domain Name together with the geographical indication ‘istanbul’ and non-distinctive and descriptive word ‘platformu’ (informal translation ‘platform’)”; and therefore, Respondent’s “on-line shop provided under the Disputed Domain Name creates the false impression that the Complainant has officially introduced the IQOS System into the Turkish market”, where it is not currently sold by Complainant. The Panel notes that the record of web page printout evidence submitted in the Annex to the Complaint supports Complainant’s argument because it shows Respondent’s unauthorized commercial website features “selling and offering the Complainant’s IQOS System” which website “is provided in Turkish”, “indicat[es] all prices in Turkish lira (₺) currency, as well as presenting the designation ‘İstanbul İçi Aynı Gün Teslim, Sizden kurye öncesi eft isteyen’ (informal translation to ‘Same Day Delivery in Istanbul’)”, which “clearly indicates that the Website is directed to Turkey”, where Respondent resides. The Panel finds that the foregoing suggests Respondent has not used the Disputed Domain Name for an actual or contemplated bona fide or legitimate use, but instead to use the Disputed Domain Name to intentionally target Complainant’s IQOS Mark to profit for its commercial gain from a false association, affiliation with or sponsorship by Complainant. The Panel also finds that Respondent has taken its false association a step further by employing Complainants own images of its IQOS Mark products as well as other smoking device products under registered mark owned by Complainant.
Complainant has shown that Respondent is not an authorized reseller of its IQOS products and has also has provided sufficient argument and evidence to persuade the Panel that Respondent does not meet the criteria laid down in Oki Data Americas, Inc. v. ASD, Inc., supra, and further described in section 2.8.1 of WIPO Overview 3.0.
Complainant asserts that Respondent does not avail itself of the safe harbors for nominative fair use provided under the Oki Data Test because, inter alia, Respondent does not disclose the relationship, or lack thereof, between Respondent and Complainant, and thereby conveys the false impression that Respondent is authorized to use Complainant’s trademark. Respondent provides no visible disclaimer stating that the website is not endorsed nor sponsored by Complainant to explain the lack of authorization or any relationship with the trademark holder. Instead, Respondent displays Complainant’s IQOS (word) Mark, IQOS (design) Mark and images of Complainant’s products and offers them for sale. Based on these facts, the Panel agrees with previous UDRP panels who have found in similar circumstances that “the risk of misrepresentation has led panels to find that a respondent lacks rights or legitimate interests in cases involving a domain name identical to the complainant’s trademark”. WIPO Overview 3.0, section 2.8.2; see also Oki Data Americas, Inc. v. ASD, Inc., supra; Houghton Mifflin Co. v. Weatherman, Inc., WIPO Case No. D2001-0211 (“no bona fide offering where website’s use of Complainant’s logo, and lack of any disclaimer, suggested that website was the official Curious George website”).
In view of the above, the Panel finds that Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the Disputed Domain Name. Respondent has not submitted any argument or evidence to rebut Complainant’s prima facie case. The Panel determines, therefore, that Respondent does not have rights or legitimate interests in the Disputed Domain Name and that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy, paragraph 4(b):
(i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations 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 the registrant’s documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location.
The Panel finds that Respondent has registered and used the Disputed Domain Name in bad faith for at least the following reasons.
First, Complainant has provided persuasive support in its Complaint Annexes that Respondent registered the Disputed Domain Names fully aware of Complainant’s rights, as the record shows that the registration date of the Disputed Domain Name is subsequent to when Complainant registered the IQOS Mark in Turkey and elsewhere, by a number of years, and, therefore, Respondent cannot claim to have been using the IQOS Mark without being aware of Complainant’s rights to it. Complainant’s evidence in support of its allegations is sufficient for the Panel to agree that Respondent could not plausibly argue that it did not have knowledge of Complainant’s well known IQOS Mark, registered in Turkey as a word mark since 2014 and as a design mark since 2016, when Respondent registered the Disputed Domain Name years later in January 2020.
The Panel finds that given the years of prior use of Complainant’s IQOS Mark prior to Respondent’s registration of the Disputed Domain Name, and Respondent’s website landing page targeting Complainant’s IQOS Mark, Respondent registered the Disputed Domain Name with actual knowledge of Complainant’s IQOS Mark in bad faith. See Royds Withy King LLP v. Help Tobuy, WIPO Case No. D2019-0624. See WIPO Overview 3.0, section 3.2.2; see, e.g. eBay Inc. v. Sunho Hong, WIPO Case No. D2000-1633 (actual knowledge of Complainant’s rights in its trademarks a factor supporting bad faith).
Moreover, the panel in Intel Corporation v. The Pentium Group, WIPO Case No. D2009-0273, stated that, “[t]he incorporation of a well-known trademark into a domain name by a registrant having no plausible explanation for doing so may be, in and of itself, an indication of bad faith”. See also Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087; Microsoft Corporation v. Montrose Corporation, WIPO Case No. D2000-1568.
Complainant states that it “has reason to believe that the Respondent or the person behind the Respondent indicated in the [WhoIs] Information, is the same person, or is connected to the same person, who was the respondent to a previous UDRP complaint filed by the Complainant, under WIPO Case No. D2020-0070”. In fact the concerned Registrar has revealed upon the filing of the Complaint that the Respondent here is the same as in the case cited. See Philip Morris Products S.A. v. Mehmet Cam, WIPO Case No. D2020-0070; see also Philip Morris Products S.A. v. Mehmet Cam, WIPO Case No. D2020-0557.
Complainant argues, therefore, that “Respondent’s purported recent involvement in the bad faith registration and use of the domain name <kuryeteslimatiqos.com> shows a pattern of bad faith conduct in connection with domain names incorporating the Complainant’s trademarks”. Complainant has directed the Panel’s attention to a recent UDRP decision involving abuse of its mark by the same Respondent and has submitted its Complaint in from that proceeding showing strikingly similar facts, involving a similar website clearly aimed at consumers of Complainant’s IQOS Mark products in Turkey. See Philip Morris Products S.A. v. Mehmet Cam, supra.
Given the fact of multiple disputed domain names registered by Respondent and the timing of such registrations over 4 to 6 years after Complainant began using its IQOS Mark, both of which encompass Complainant’s entire mark, appending common terms, the Panel believes these factors warrant a finding that Respondent has engaged in an abusive pattern of registration of domain names targeting Complainant’s IQOS Mark, such conduct amounting to bad faith registration pursuant to paragraph 4(b)(ii) of the Policy.
Respondent has had the opportunity to explain and justify how Respondent came to register the Disputed Domain Name but has failed to do so. Indeed, the fact that Respondent has elected not to appear in this proceeding underscores that Respondent likely has no valid explanation for Respondent’s actions, which to this Panel appears on the evidence submitted to have been undertaken in bad faith. See, e.g., Volkswagen Group of America, Inc. v. Super Privacy Service Ltd. c/o Dynadot, WIPO Case No. D2019-2521.
Complainant also contends that “any [I]nternet user when visiting a website provided under the Disputed Domain Name [<]istanbuliqosplatformu.com[>] will reasonably expect to find a website commercially linked to the owner of the IQOS trademarks”. Respondent’s actions, therefore, constitute use of the Disputed Domain Name in bad faith because Respondent registered and used the Disputed Domain Name with the intention to attract, for commercial gain, [I]nternet users to the website by creating a likelihood of confusion with Complainant’s registered IQOS trademark […] constituting registration and use in bad faith pursuant to paragraph 4(b)(iv) of the Policy.
Based on the evidence submitted, as noted in section 6B above, the Panel finds that Respondent’s website accessed through the Disputed Domain Name features the use of Complainant’s IQOS Marks and Complainant’s own images of Complainant’s electronic smoking device products to intentionally suggest an affiliation with or sponsorship by Complainant.
Based on these facts, the Panel finds, therefore, that Respondent is using the Disputed Domain Name to intentionally attempt to attract Internet users to a website for commercial gain, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website in violation of Policy paragraph 4(b)(iv). Such use “constitutes evidence of both bad faith registration and bad faith use, for the purposes of paragraph 4(a)(iii)”. See Philip Morris Inc. v. Alex Tsypkin, WIPO Case No. D2002-0946.
The Panel finds Complainant’s arguments and evidence persuasive and no arguments or evidence submitted by Respondent to the contrary. Considering all the circumstances, the Panel concludes that Respondent has registered and used the Disputed Domain Name in bad faith and Complainant has satisfied paragraph 4(a)(iii) of the Policy.
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 <istanbuliqosplatformu.com> be transferred to Complainant.
Scott R. Austin
Sole Panelist
Date: May 22, 2020