URS DEFAULT DETERMINATION


Philip Morris Products S.A. v. Engin Sahin
Claim Number: FA1907001851011


DOMAIN NAME

<iqostr.store>


PARTIES


   Complainant: Philip Morris Products S.A. of Neuchâtel, II, Switzerland
  
Complainant Representative: DM KISCH INC Andrew Papadopoulos of Sandton, II, South Africa

   Respondent: Engin Sahin Engin Sahin of Istanbul Bagcilar, II, TR
  

REGISTRIES and REGISTRARS


   Registries: DotStore Inc.
   Registrars: Nics Telekomunikasyon A.S.

EXAMINER


   The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
   Ms. Kateryna Oliinyk, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: July 5, 2019
   Commencement: July 5, 2019
   Default Date: July 22, 2019
   Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT


   Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW


   Clear and convincing evidence.

FINDINGS and DISCUSSION



   Findings of Fact: Findings of Fact: Under URS 9.1. the evidences will be the materials submitted with the Complaint and the Response, and those materials will serve as the entire records used by the Examiner to make a Determination. URS 8.2. reads that the burden of proof shall be clear and convincing evidences. Under URS 8.6. if the Examiner finds that all three standards provided for by URS 8.1. are satisfied by clear and convincing evidences and that there is no genuine contestable issue, then the Examiner shall issue a Determination in favour of the Complainant. Under URS 6.1. if at the expiration of the 14 Calendar Day Response period (or extended period if granted), the Registrant does not submit an answer, the Complaint proceeds to Default. Further URS 6.3. reads that all Default cases proceed to Examination for review on the merits of the claim. Complainant owns numerous trademark registrations for the distinctive term IQOS, covering numerous jurisdictions, including Swiss Registration IQOS (word) No. 660918. The IQOS Trademark is registered with the Trademark Clearinghouse. The Respondent and the website provided under the Disputed Domain are not in any way affiliated to the Complainant nor has the Complainant authorized Respondent�s registration and/or use of the Disputed Domain. By registering a domain name comprising of the Complainant�s IQOS trademark and prominently using the Complainant�s IQOS trademark, Respondent is attempting to attract internet users looking for Complainant�s goods, and purposefully misleading users as to the source of the website. Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

  

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.


[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


The registered domain name < iqostr.store> fully incorporates the word mark IQOS for which the Complainant holds valid registrations in different jurisdictions and that are in current use, the status and confirmation of use in which are supported by relevant entries with the Clearinghouse. It is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus new gTLD .store does not preclude confusion of the conflicting domain with the Complainant�s mark. Quite to the contrary, the new gTLD .store is the descriptor for the website which constitutes the online platform for selling IQOS. Addition of the two letters �tr� after the name �iqos� does not preclude confusion between the mark and the domain name as it will be regarded as the weak element of the domain name referring to the country code �TR� and implying the targeted territory and/or the audience of the website. Respectively, the Examiner finds that the contested domain name is confusingly similar with the Complainant�s word marks under URS 1.2.6.1. (i).


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


The Examiner determines that the Respondent is not commonly known by the IQOS name and that the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant�s marks in a domain name or otherwise. At the same time the website is used for commercial purpose as the online platform for selling the IQOS products, that cannot be qualified as the legitimate fair use. Therefore, the Examiner finds that the Complaint meets URS requirement of 1.2.6.2.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


The site must accurately and prominently disclose the registrant�s relationship with the trademark holder to confirm the bona fine offering of services, that is not the case. The website is designed so that it creates impression of the original website administrated by the Complainant, that is not the case. The bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. Thus, the Examiner finds the Contested Domain Names misleading that supports finding of bad faith registration under URS 1.2.6.3.(d).


FINDING OF ABUSE or MATERIAL FALSEHOOD


The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


After reviewing the parties submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

  1. iqostr.store

 

Ms. Kateryna Oliinyk
Examiner
Dated: July 25, 2019

 

 

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