URS DEFAULT DETERMINATION
Philip Morris Products S.A. v. WhoisSecure
Claim Number: FA2009001912089
DOMAIN NAME
<hiqosuae.xyz>
PARTIES
| Complainant: Philip Morris Products S.A. of Neuchâtel, II, Switzerland | |
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Complainant Representative: DM KISCH INC of Sandton, II, South Africa
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| Respondent: WhoisSecure of Los Angeles, CA, US | |
REGISTRIES and REGISTRARS
| Registries: XYZ.COM LLC | |
| Registrars: OwnRegistrar, Inc. |
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. | |
| Hector Ariel Manoff, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: September 14, 2020 | |
| Commencement: September 15, 2020 | |
| Default Date: September 30, 2020 | |
| 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
| Procedural Findings: | ||
| Multiple Complainants: Complainant is an international tobacco company, with products sold in over 180 markets worldwide, who owns trademark "IQOS" in several countries since 2014. IQOS is a reduced risk tobacco device, launched in Japan in 2014. The IQOS product is sold in more than 50 markets. Moreover, the mentioned trademark is also registered in the TMCH. 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. | ||
| Findings of Fact: [OptionalComment] |
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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: Determined: Finding for Complainant The disputed domain name <hiqosuae.xyz> includes Complainant’s registered IQOS mark. It combines the mentioned Trademark with the addition of the acronym UAE (UNITED ARAB EMIRATES) and the generic top level domain “.xyzâ€, indicating the purpose of offering IQOS products in the mentioned country, as shown in hiqosuae.xyz. Examiner finds that the disputed domain name is confusingly similar to the Complainant’s trademark registrations and that Complainant has complied with URS 1.2.6.1 by demonstrating that the disputed domain name is confusingly similar to a mark for which the Complainant holds a valid national registration which is in current use. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant Complainant has not authorized Respondent to use its registered trademark IQOS. Complainant has not licensed or permitted Respondent to use the IQOS Marks or to apply for any Domain Name incorporating the IQOS Mark. Respondent has not filed a response to this complaint and consequently no evidence was submitted to prove that he is commonly known as IQOS. Consequently, there is no evidence about rights or legitimate interest in IQOS and the disputed domain name, or evidence about a fair use either. The Examiner finds that the requirements set forth by URS 1.2.6.2 have been also met.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant Since Complainant’s trademark is prior to the disputed domain name’s registration, Examiner concludes that the registration of the disputed domain name was made on bad faith. By registering a domain name comprising of Complainant’s IQOS trademark and using it along whit copyright protected marketing material on the website, Respondent is attempting to attract internet users looking for Complainant’s goods, and purposefully misleading users as to the source of the website. By using Complainant’s IQOS trademark in the Disputed Domain and hiding the identity of the website provider, Respondent is purposefully misleading users as to the source, sponsorship, or endorsement of the offerings under the Disputed Domain. Furthermore, Examiner agrees with complainant in that Respondent’s use of the IQOS trademark while it conceals its identity, does not constitute a “bona fide offering†pursuant to the “OKI Data Principles†and unquestionably demonstrates bad faith. Respondent is intentionally using the Complainant’s IQOS trademark to confuse and attract customers to its site, while also offering products unrelated to Complainant. Examiner finds that the disputed domain names are being used in bad faith to attract users for commercial gain and that Complainant has complied with URS 1.2.6.3. 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:
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:
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Hector Ariel Manoff Examiner
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