GLOCK, Inc. v. Yanick elangwe / Nkemzi Nobatel
Claim Number: FA2205001996553
Complainant is GLOCK, Inc. (“Complainant”), represented by John F. Renzulli of Renzulli Law Firm, LLP, New York, USA. Respondent is Yanick elangwe / Nkemzi Nobatel (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <buyglockguns.com> and <glockgunsstore.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com; NameSilo, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 16, 2022; the Forum received payment on May 16, 2022.
On May 17, 2022; May 18, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com; NameSilo, LLC confirmed by e-mail to the Forum that the <buyglockguns.com> and <glockgunsstore.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com; NameSilo, LLC and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com; NameSilo, LLC has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com; NameSilo, 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 May 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 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@buyglockguns.com, postmaster@glockgunsstore.com. Also on May 23, 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 June 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant alleges that the entities which control the domain names at issue are effectively controlled by the same person and/or entity. 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 holder.”
The at-issue domain names are very similar. Each contains the trademark laden term “glockguns.” The domain names differ only by inclusion of the additional generic term “buy” in one, and the term “store” in the other. The website(s) addressed by the at-issue domain names have the same look and feel as well as similar content. The domains were registered within ten days of each other. Therefore, the at-issue domain names appear to be related to, or controlled by, the same person, persons, or entity. Additionally, Complainant’s request that the domain names’ registrants be treated as a single entity is unopposed. Based on the foregoing, the Panel will consider the domain names’ nominal registrants as a single entity for the purposes of this proceeding.
A. Complainant
Complainant contends as follows:
Complainant, GLOCK, Inc., is a firearm manufacturer.
Complainant has rights in the GLOCK mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <buyglockguns.com> and <glockgunsstore.com> domain names are identical or confusingly similar to Complainant’s mark as they incorporate the mark in its entirety and add the descriptive terms “buy”, “guns”, and “store”, along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <buyglockguns.com> and <glockgunsstore.com> domain names. Respondent is not commonly known by the at-issue domain names, nor has Complainant authorized or licensed Respondent to use its GLOCK mark in the disputed domain names. Additionally, Respondent does not use the at-issue domain names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead to engage in phishing for internet users’ personal and financial information.
Respondent registered and uses the <buyglockguns.com> and <glockgunsstore.com> domain names in bad faith. Respondent uses both domain names to purport to sell Complainant’s firearm products for its own commercial gain. Respondent is likely not shipping the firearms at all and to engage in selling and shipping of firearms would be illegal. Additionally, Respondent uses the domain names to phish for internet users’ personal and financial information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the GLOCK mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the GLOCK trademark.
Respondent uses the at-issue domain names to pass itself off as Complainant and purports to sell Complainant’s products at the domain names’ referenced website while phishing for online user 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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the GLOCK mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <buyglockguns.com> and <glockgunsstore.com> domain name consists of Complainant’s GLOCK trademark followed by the suggestive term “guns.” One domain name prefixes “glockguns” with the term “buy,” the other follows “glockguns” with the term “store.” Both domain names conclude with the “.com” top-level. Under the Policy, the differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the domain name from the mark. Therefore, the Panel concludes that Respondent’s <buyglockguns.com> and <glockgunsstore.com> domain names are each confusingly similar to Complainant’s GLOCK trademark pursuant to Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)).see also Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
The WHOIS information for <buyglockguns.com> and <glockgunsstore.com> indicates that “Yanick elangwe” and “Nkemzi Nobatel” are the domain name’s nominal registrants respectively. There is nothing in the record before the Panel that indicates that Respondent is otherwise known by either <buyglockguns.com> or by <glockgunsstore.com>. As such, the Panel finds that Respondent is not commonly known by the at-issue domain names under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain names to address a website that pose as a website sponsored by Complainant and there purports to sell Complainant’s GLOCK products. However, Respondent’s <buyglockguns.com> and <glockgunsstore.com> website’s purchase process lacks certain legal requirements for selling firearms. Furthermore, Respondent fails to keep contact with internet “buyers” and never delivers any “purchased” product. Respondent’s website is a sham by all accounts and likely used as a vehicle for collecting proprietary user information and swindling internet users. Such use of the domain name is not indicative of a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <buyglockguns.com> and <glockgunsstore.com> domain names were each registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s uses the at-issue domain names to purportedly sell Complainant’s goods without authorization. Doing so is evidence of disruption for commercial gain and indicates Respondent’s effort to profit from the confusion it created as to the source and sponsorship of the domain names and their associated website. Such use of the domain names thus shows Respondent’s bad faith registration and use of <buyglockguns.com> and <glockgunsstore.com> under Policy ¶¶ 4(b)(iii) and (iv).See Wall v. Silva, FA 105899 (Forum Apr. 29, 2002) (finding that despite respondent’s claim that it used the <josephinewall.com> domain name, which was identical to complainant’s JOSEPHINE WALL mark, to help complainant become popular in the United States, the Panel found that the respondent’s use of the domain name to sell the complainant’s artwork in the United States constituted disruption pursuant to Policy ¶ 4(b)(iii)); see also Xiaomi Inc. v. Tanapong Kotipan / Omega Gadget, FA1505001621199 (Forum July 10, 2015) (“Use of a domain name to offer counterfeit goods does consist of bad faith under Policy ¶ 4(b)(iii).”); see additionally Compaq Info. Techs. Group, L.P. v. Waterlooplein Ltd., FA 109718 (Forum May 29, 2002) (finding that the respondent’s use of the <compaq-broker.com> domain name to sell the complainant’s products “creates a likelihood of confusion with Complainant's COMPAQ mark as to the source, sponsorship, or affiliation of the website and constituted bad faith pursuant to Policy ¶ 4(b)(iv)”); see additionally Affliction, Inc. v. Chinasupply, FA 1223521 (Forum Oct. 23, 2008) (finding that the respondent attempts to commercially gain and thus demonstrating bad faith per Policy ¶ 4(b)(iv) by creating confusion as to the complainant’s connection with the website by selling counterfeit products).
Next, Respondent uses the domain names to facilitate a phishing scheme. Respondent capitalizes on the confusion caused by its <buyglockguns.com> and <glockgunsstore.com> domain names to trick internet users into believing that the at-issue domain name and its associated website are sponsored or authorized by Complainant when they are not. Respondent then exploits the wayward visitors to its website store to further a phishing scheme aimed at collecting proprietary information from third parties. Respondent’s use of the confusingly similar domain name to perpetrate fraud also shows Respondent’s bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Additionally, Respondent does not actually ship the firearms it purports to sell and doing so would be illegal as Respondent offers no mechanism to meet the legal requirements necessary to transfer firearms under federal law. Such law requires that firearms purchased online be shipped only to a Federal Firearms Licensee who then facilitates transfer pursuant to applicable federal and state law. Instead, Respondent collects payments but never delivers any products. Respondent’s swindling of third parties demonstrates bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith).
Moreover, the Panel finds that Respondent registered its <buyglockguns.com> and <glockgunsstore.com> domain names knowing that Complainant had trademark rights in GLOCK. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s display of images of Complainant’s products as well as Complainant’s GLOCK trademark on Respondent’s sham <buyglockguns.com> and <glockgunsstore.com> website(s). Respondent’s prior knowledge of Complainant's trademark further demonstrates that Respondent registered and used <buyglockguns.com> and <glockgunsstore.com> in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in 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 <buyglockguns.com> and <glockgunsstore.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 23, 2022
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