Henry RAC Holding Corp., dba Henry Repeating Arms Company v. CHRIS LOUNGE / Brown Skirth / Glock Guns / Max Weed Shop / Sera Omar Sharon / Domain Administrator / See PrivacyGuardian.org
Claim Number: FA2202001985813
Complainant is Henry RAC Holding Corp., dba Henry Repeating Arms Company (“Complainant”), represented by John F. Renzulli of Renzulli Law Firm, LLP, New York, USA. Respondent is CHRIS LOUNGE / Brown Skirth / Glock Guns / Max Weed Shop / Sera Omar Sharon / Domain Administrator / See PrivacyGuardian.org (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <grabhenryguns.com>, <henryarmstore.com>, <henryfirearm.com>, <henryfirearmsusa.com>, <henrygunsdealer.com>, <henrypridestore.com>, and <stockhenryarmory.com>, registered with NameSilo, LLC; Dynadot, LLC; and Gransy, s.r.o.
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 February 24, 2022; the Forum received payment on February 24, 2022.
On February 25, 27 & 28, 2022, NameSilo, LLC; Dynadot, LLC; and Gransy, s.r.o. confirmed by e-mail to the Forum that the <grabhenryguns.com>, <henryarmstore.com>, <henryfirearm.com>, <henryfirearmsusa.com>, <henrygunsdealer.com>, <henrypridestore.com>, and <stockhenryarmory.com> domain names are registered with NameSilo, LLC; Dynadot, LLC; and Gransy, s.r.o. and that Respondent is the current registrant of the names. NameSilo, LLC; Dynadot, LLC; and Gransy, s.r.o. has verified that Respondent is bound by the NameSilo, LLC; Dynadot, LLC; and Gransy, s.r.o. registration agreements 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 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2022 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@grabhenryguns.com, postmaster@henryarmstore.com, postmaster@henryfirearm.com, postmaster@henryfirearmsusa.com, postmaster@henrygunsdealer.com, postmaster@henrypridestore.com, postmaster@stockhenryarmory.com. Also on March 1, 2022, 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 March 28, 2022, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that the domain names are under common control as the layout of the resolving websites are similar, and the layout of the shop pages and checkout pages at all seven disputed domain names are nearly identical. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all seven contested domain names, and the registrants are collectively referred to as “Respondent”.
A. Complainant
Complainant is states that it is a manufacturer of high-end firearms in the United States. Complainant’s firearms are based on a historical rifle design initially developed in the 19th century. The “Henry Rifle” was first patented in 1860 by Benjamin Tyler Henry and swiftly became renowned for its performance with Union soldiers in the American Civil War. Complainant manufactures firearms inspired by the legendary performance of the original Henry Rifle. Complainant is the leading manufacturer of lever-action rifles and shotguns in the United States, and proudly manufactures firearms only in the United States. Complainant has rights in the HENRY mark based on its registration of the mark in the United States in 2001.
Complainant alleges that the disputed domain names are confusingly similar to its HENRY mark since the mark is the dominant element in the domain names and they all simply add generic terms and the “.com” generic top level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and Complainant has not authorized Respondent to use its HENRY mark. Additionally, Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain names domains to pass off as Complainant: the resolving websites display Complainant’s mark and logo, and purport to sell Complainant’s products. However, Respondent does not ship any products or communicate truthfully with consumers after it has collected their information and money. In fact, Respondent is unable legally to ship any of the products it purports to sell.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent uses the disputed domain names to purportedly sell Complainant’s products, but cannot legally do so and does not actually ship products. Respondent phishes for consumers’ personal and financial information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark HENRY dating back to at least 2001 and uses it to market firearms.
The disputed domain names were registered between September 26, 2021 and November 15, 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites purport to offer Complainant’s firearms for sale, displaying Complainant’s mark and distinctive logo; however, Respondent does not and legally cannot ship any of the products advertised, and in actuality uses the resolving websites to phish for users’ information.
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”).
Complainant’s HENRY mark is the dominant element in the disputed domain names, which all simply add various generic terms and the “.com” gTLD. The addition of generic terms and a gTLD to a mark may be insufficient to differentiate the disputed domain name from the mark under Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Thus the Panel finds that the disputed domain names are confusingly similar to the Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its HENRY mark. Respondent is not commonly known by the disputed domain names: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Here, the WHOIS information identifies “CHRIS LOUNGE / Brown Skirth / Glock Guns / Max Weed Shop / Sera Omar Sharon / Domain Administrator / See PrivacyGuardian.org” as the registrants. Thus, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain names to pass off as Complainant and phish for users’ personal information. Specifically, Complainant provides evidence showing that the resolving websites purport to offer Complainant’s firearms for sale, displaying Complainant’s HENRY mark and distinctive logo; however, Respondent does not and legally cannot ship any of the products advertised, and in actuality uses the resolving websites to phish for users’ information. Such use of a disputed domain name does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Kel-Tec CNC Industries, Inc. v. Paul Harry, FA 1927070 (Forum Feb. 2, 2021) (finding no rights or legitimate interests when “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.”); see also Airbnb, Inc. v. Nima Rahnemoon, FA 1737766 (Forum July 25, 2017) (“It is clear from the evidence that Respondent has used the site attached to the Domain Name to promote illegal unauthorized use of Complainant’s systems… As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name.”); see also Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Thus, the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
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 names to pass off as Complainant and to purport to sell Complainant’s products, however, Respondent does not and legally cannot ship any of the products advertised, and in actuality uses the resolving websites to phish for users’ information. This is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Nous Defions, LLC v. james pechi / Squarespace, FA 1666199 (Forum Apr. 17, 2016) (finding bad faith registration and use when the respondent used the disputed domain name to obtain “numerous paid orders for firearms and related goods from the consuming public, but never fulfilled an order”); see also Kel-Tec CNC Industries, Inc. v. Paul Harry, FA 1927070 (Forum Feb. 2, 2021); 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 Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website). Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving websites display Complainant’s mark and distinctive logo, and 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 constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, Respondent displays a pattern of bad faith registration of disputed domain names containing Complainant’s HENRY mark. Registration of multiple domain names containing a complainant’s mark can substantiate an argument that a respondent registered and uses a disputed domain name in bad faith per Policy ¶ 4(b)(ii). See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (finding that registration of several infringing domain names in a case satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Caterpillar Inc. v. Angie Arendt / DIAHOST .CO / keith mosley, FA1805001789701 (Forum July 2, 2018) (finding that Respondent engaged in a pattern of bad faith and registration by registering multiple domain names that contain Complainant’s famous CATERPILLAR mark); see also Radisson Hotels International, Inc. v. Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / Denliyan, FA1504001615349 (Forum June 1, 2015) (“The Panel agrees that Respondent’s registration of the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names, which all infringe on Complainant’s mark, constitutes bad faith under Policy ¶ 4(b)(ii).”). Thus the Panel finds that Respondent registered the disputed domain names in bad faith per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <grabhenryguns.com>, <henryarmstore.com>, <henryfirearm.com>, <henryfirearmsusa.com>, <henrygunsdealer.com>, <henrypridestore.com>, and <stockhenryarmory.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 28, 2022
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