Sig Sauer Inc. v. Serge Letonsinki
Claim Number: FA2103001937082
Complainant is Sig Sauer Inc. (“Complainant”), represented by Mark A. Wright of McLane Middleton, New Hampshire, USA. Respondent is Serge Letonsinki (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sigsauerpistols.org> (the “disputed domain name”), registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 18, 2021; the Forum received payment on March 18, 2021.
On March 18, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <sigsauerpistols.org> disputed domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 March 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 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@sigsauerpistols.org. Also on March 22, 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 May 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M> Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is engaged in the business of manufacturing and sales of weapons, including firearms, ammunition, and accessories. Complainant has rights in the SIG SAUER trademark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,313,360, registered Jan. 8, 1985). In addition, Complainant has registered trademarks in numerous jurisdictions worldwide (hereinafter collectively referred to as the “SIG SAUER Mark”).
Complainant contends that Respondent’s <sigsauerpistols.org> disputed domain name is confusingly similar to Complainant’s SIG SAUER Mark, that Respondent has no rights or legitimate interests in the <sigsauerpistols.org> disputed domain name, and that Respondent registered and is using the <sigsauerpistols.org> disputed domain name in bad faith. Complainant sent several cease-and-desist letters to Respondent but received no response.
Respondent
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant owns a registered trademark in the SIG SAUER Mark in the United States through the USPTO. The Panel further concludes that the disputed domain name is confusingly similar to Complainant’s SIG SAUER Mark, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.
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 disputed domain name should be cancelled or transferred:
(1) The disputed 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 disputed domain name; and
(3) the disputed 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 Panel finds that Complainant has rights in the SIG SAUER Mark based on its registration of the SIG SAUER Mark with the USPTO (e.g., Reg. No. 1,313,360, registered Jan. 8, 1985). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership of a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
The Panel also finds that Respondent’s <sigsauerpistols.org> disputed domain name is confusingly similar to Complainant’s SIG SAUER Mark as Respondent merely adds the descriptive term “pistols” and the “.org” generic Top-Level Domain (“gTLD”) to Complainant’s SIG SAUER Mark. Adding descriptive terms and a gTLD to a complainant’s mark does not distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not submit a response to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard pressed to furnish availing arguments had it chosen to respond:
In support, the Panel finds that Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SIG SAUER Mark in the disputed domain name. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name and its resolving website to pass off as Complainant and offer Complainant’s products without Complainant’s permission is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Complainant provides screenshots of the <sigsauerpistols.org> disputed domain name’s resolving webpage, which displays Complainant’s firearms and other goods bearing the SIG SAUER Mark.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
The Panel finds that Respondent registered and is using the disputed domain name for commercial gain in bad faith. Under Policy ¶ 4(b)(iv), attempting to divert Internet users to a disputed domain name’s resolving website, where Respondent passes itself off as Complainant and offers Complainant’s goods demonstrates bad faith registration and use. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
In addition, Respondent’s failure to respond to Complainant’s cease-and-desist and reminder letters indicates Respondent’s bad faith. Bad faith may be found when a Respondent does not reply to a cease-and-desist letter. See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sigsauerpistols.org> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: May 25, 2021
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