Kel-Tec CNC Industries, Inc. v. Paul Harry
Claim Number: FA2101001927070
Complainant is Kel-Tec CNC Industries, Inc. (“Complainant”), represented by Christopher Renzulli of Renzulli Law Firm, LLP, New York, USA. Respondent is Paul Harry (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <keltecfirearms.com>, registered with Dynadot, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2021; the Forum received payment on January 4, 2021.
On January 6, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <keltecfirearms.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 7, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 27, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@keltecfirearms.com. Also on January 7, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a renowned manufacturer of firearms. Founded in 1991, it has grown to be one of the five largest handgun manufacturers in the United States, and one of the largest in the world. Complainant pioneered the development of pistols intended specifically for concealed carry and has since expanded to create innovative rifle and shotgun designs. Complainant has rights in the KEL TEC mark through its registration in the United States in 2015.
Complainant alleges that the disputed domain name is confusingly similar to its KEL TEC mark since it fully incorporates the mark, minus the space, and merely adds the generic term “firearms”.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is not authorized to use the KEL TEC mark. Further, Respondent is not using the disputed domain name for any legitimate purpose. Instead, it uses it to perpetrate a fraud on customers. Respondent purports to sell genuine KEL TEC firearms. Respondent only accepts payment through wire transfers or digital currency such as Bitcoin. Respondent takes payment from consumers and gathers personal information from them, including their names and addresses. Respondent does not ship any products or communicate with consumers in any way after it has collected their information and money. In fact, Respondent is unable to legally ship any products. Federal law requires firearms purchased online to be shipped to a Federal Firearms Licensee (“FFL”) who will then facilitate the transfer of the firearm under all applicable federal and state laws and regulations. Respondent’s “checkout” page has no place to input this legally required information. At least one consumer has been defrauded by Respondent and has alerted Complainant to Respondent’s fraudulent scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent purports to sell Complainant’s products when in fact it cannot do so legally; instead, Respondent uses the disputed domain in connection with a fraudulent scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark KEL TEC and uses it to market firearms.
Complainant’s rights in its mark date back to 2015.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving purports to sell Complainant’s products and requests customers’ mailing address; however, Respondent cannot legally ship the products.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name fully incorporates Complainant’s mark, minus a space, and adds the generic term “firearms.” Per Policy ¶ 4(a)(i), addition of a generic term and a gTLD is generally insufficient to negate confusing similarity between a domain name and a mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Similarly, removal of a space from a mark is irrelevant to the determination of confusing similarity under Policy ¶ 4(a)(i). See Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“The … elimination of spacing [is] considered irrelevant when distinguishing between a mark and a domain name.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Here, the WHOIS information of record identifies the registrant as “Paul Harry”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website purports to sell genuine KEL TEC firearms. Respondent gathers personal information from the customers, including their names and addresses. Respondent does not ship any products or communicate with consumers in any way after it has collected their information and money. In fact, Respondent is unable legally to ship any products. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ranbaxy Laboratories Inc. v. Johnny Carpela, FA0810001231644 (Forum Dec. 10, 2008) (finding that a website which fraudulently purported to be a reference site for a brand name medication was not bona fide or legitimate.); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA95407 (Forum Sept. 27, 2000) (“[U]nauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”).Therefore, the Panel finds that Respondent does not use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent uses the disputed domain name fraudulently to obtain personal and financial information that it cannot use legitimately This can evidence bad faith registration and use. See United Parcel Service of America, Inc. v. Jamie Hans FA1901001826973 (Forum Feb. 25, 2019) (“Respondent registered two domain names that combine Complainant's well-known mark with generic terms relating to Complainant's business, and is using them to impersonate Complainant, presumably for fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy.”); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to acquire the personal and financial information of the complainant’s customers fraudulently); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to [fraudulently] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays pictures of Complainant’s products. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this too constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <keltecfirearms.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 2, 2021
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