Westmore · UDRP DecisionIqos-ankara.com
The Panel ordered transfer of <iqos-ankara.com>. It found the domain confusingly similar to the Complainant’s IQOS trademark because it incorporated IQOS in its entirety and merely added the geographical term “ankara.” The Respondent lacked rights or legitimate interests, and the Turkish-language online shop’s use of the IQOS mark and the Complainant’s official materials was found intended to attract Internet users for commercial gain by creating confusion. The Panel therefore found registration and use in bad faith under paragraph 4(b)(iv) of the Policy.
The timeline behind iqos-ankara.com
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The case illustrates how a domain combining a distinctive trademark with a city name can reinforce rather than dispel an impression of localized official affiliation when the corresponding website uses the relevant local language, sells the trademark owner’s products, and reproduces official brand materials. The decision also shows that privacy-service use was considered as part of the overall bad-faith circumstances rather than as the sole basis for the outcome.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Philip Morris Products S.A. v. Domain Administrator / See PrivacyGuardian.org / Kaan Bora Case No. D2019-1646 1. The Parties The Complainant is Philip Morris Products S.A., Switzerland, represented by D.M. Kisch Inc., South Africa. The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America / Kaan Bora, Turkey. 2. The Domain Name and Registrar The disputed domain name <iqos-ankara.com> is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2019. On July 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 July 16, 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 July 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 July 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 12, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 13, 2019. The Center appointed Mario Soerensen Garcia as the sole panelist in this matter on August 20, 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 is a Swiss company and a subsidiary of Philip Morris International, Inc., the leading international tobacco company, with products sold in approximately 180 countries. In the course of transforming its business from combustible cigarettes to Reduced Risk Products (with the potential to present less risk of harm to smokers), the Complainant has developed the IQOS system, a precisely controlled heating device into which tobacco products are inserted and heated to generate a flavourful nicotine containing aerosol. The IQOS system was first launched in 2014 in Japan and today is available in around 44 markets around the world, being distributed through official stores and websites with selected authorized distributors and retailers. The Complainant owns several trademark registrations for IQOS around the world, including the International trademark registration No. 1218246, for the mark IQOS (word), registered on July 10, 2014, as well as the International registration No. 1338099, for the mark IQOS (device), registered on November 22, 2016, both of them designating Turkey. The disputed domain name was registered on June 10, 2019, and the website resolves to an online shop offering the Complainant’s IQOS system, in Turkish. 5. Parties’ Contentions A. Complainant The Complainant argues that the disputed domain name incorporates the Complainant’s registered trademark IQOS, with the addition of the geographical indication “ankara”, which would be insufficient to avoid a finding of confusing similarity with the Complainant’s trademark. The Complainant alleges that the Respondent registered the disputed domain name without authorization, is not known or in any way related to the Complainant and that it lacks any right or legitimate interest in respect to the disputed domain name. In addition, the Complainant says that the Respondent’s use of the disputed domain name or preparation to use the disputed domain name demonstrates no intent to use it with a bona fide offering of goods or services. On the contrary, the Respondent’s behavior shows a clear intent to obtain unfair commercial gain. The Complainant demonstrates that the disputed domain name is linked to an online store offering, in the Turkish language, the Complainant’s IQOS system. Since the Complainant’s IQOS system is not currently sold in Turkey and the website reproduces IQOS trademark in addition to the Complainant’s official marketing materials and images, it gives a false impression of an affiliation with the Complainant. The Complainant adds that the website linked to the disputed domain name includes no information regarding the identity of the respective provider. According to the Complainant, it is evident that the Respondent knew of the Complainant’s trademark when registering the disputed domain name. Firstly, the term IQOS is not commonly used to refer to tobacco products. Secondly, by reproducing the Complainant’s trademark in the disputed domain name and the title of the website, the Respondent’s website suggests the Complainant or an affiliated dealer as the source of the website, which is not true. Finally, the fact that the Respondent is using a privacy protection service to hide its true identity may indicate bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings As per paragraph 4(a) of the Policy, the Complainant must prove that: (i) the disputed domain name is identical or confusingly similar to a trademark or service 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 The evidence presented demonstrates that the Complainant is the owner of several trademark registrations for IQOS around the world, including International registrations also designating Turkey. The Complainant’s trademarks predate the disputed domain name. The disputed domain name incorporates the Complainant’s trademark IQOS in its entirety. The addition of the geographical term “ankara” does not avoid confusing similarity between the disputed domain name and the Complainant’s trademark. In this regard, it is the general view among UDRP panels that the addition of merely dictionary, descriptive or geographical words to a trademark in a domain name is normally insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP (for example, Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd , WIPO Case No. D2001-0110 ). The Panel finds that paragraph 4(a)(i) of the Policy has been proved by the Complainant, i.e. , the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests The Respondent has not submitted a response to the Complaint. There is no evidence that the Respondent has any authorization to use the Complainant’s trademark or to register domain names containing the trademark IQOS. There is no evidence that the Respondent is commonly known by the disputed domain name. There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name or that before any notice of the dispute the Respondent has made use of, or demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Instead, there is evidence in the Complaint that the disputed domain name was registered and used with the intention of attracting Internet users, for commercial gain, creating a likelihood of confusion with the Complainant’s trademark IQOS. The Panel finds that the use of the disputed domain name, which incorporates the Complainant’s trademark, does not correspond to a bona fide use of the disputed domain name under the Policy. For the above reasons, the Panel finds that the condition of paragraph 4(a)(ii) of the Policy has been satisfied, i.e ., the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The trademark IQOS is registered by the Complainant in several jurisdictions as per the documents presented in the complaint. The disputed domain name incorporates the Complainant’s trademark IQOS in its entirety and the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant’s IQOS mark is very distinctive and the term “iqos” has no relation with tobacco products. Thus, a domain name that comprises such a mark and resolves to a website about tobacco related products is already suggestive of the registrant’s bad faith. The addition of the geographical term “ankara” to a disputed domain name linked to a website in the Turkish language is indeed very likely to mislead Internet users into believing that the disputed domain name belongs to the Complainant in Turkey. In addition, the Respondent still reproduced in the website the trademark IQOS and official material from the Complainant, also hiding its true identity using a privacy protection service. Therefore, it seems clear that the Respondent’s intention was to make profit by deceiving Internet users. Therefore, this Panel finds that the Respondent has intentionally attempted to obtain any kind of commercial gain with the registration of the disputed domain name. This Panel finds that the Respondent’s attempt of taking undue advantage of the trademark IQOS as described in paragraph 4(b)(iv) of the Policy has been demonstrated. For the above reasons, the Panel finds that the condition of paragraph 4(a)(iii) of the Policy has been satisfied, i.e ., the disputed domain name has been registered and is being used 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 <iqos-ankara.com> be transferred to the Complainant. Mario Soerensen Garcia Sole Panelist Date: September 2, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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