GLOCK, Inc. v. Shawn Peterson / Ndeta Innocent
Claim Number: FA2204001993721
Complainant is GLOCK, Inc. (“Complainant”), represented by Gavin M. Strube of Renzulli Law Firm, LLP, New York, USA. Respondent is Shawn Peterson / Ndeta Innocent, (“Respondent”), California, USA and Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names listed in the complaint are <officialglock19shop.com> and <glockarmouryshop.com>, registered with NameCheap, Inc.
For the reasons given below, the Panel finds that the only relevant domain name for this case is <officialglock19shop.com>.
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 April 25, 2022; the Forum received payment on April 25, 2022.
On April 26, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <officialglock19shop.com> and <glockarmouryshop.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 April 29, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 19, 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@officialglock19shop.com, postmaster@glockarmouryshop.com. Also on April 29, 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 May 24, 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. In support of this allegation it states:
a) the disputed domain names are very similar, differing only in the various combinations of the generic terms “armoury,” “official,” and “shop”;
b) the limited Whois database information available for the disputed domain names is nearly identical;
c) the layouts of the resolving websites are similar;
d) the checkout pages for both Disputed Domain Names allow for common forms of “payment,” namely Bitcoin;
e) the checkout pages either indicate that mandatory Federal Firearms Licensee (“FFL”) information is optional or have no place to input this legally required information.
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 allegations (a) and (d) above do not necessarily indicate that the domain names are under common control. Allegation (b) appears to relate to the privacy service used to register the disputed domain names; the actual registrants disclosed by the privacy service at the request of the Forum are very different from each other. The Panel does not agree with allegation (c): the evidence presented by Complainant indicates that the two resolving websites are rather different. The Panel also does not agree with allegation (e): the checkout pages of the website at <glockarmouryshop.com> appear to require FFL information.
Thus the Panel finds that Complainant has not presented sufficient evidence to find that both disputed domain names were registered by the same person or entity.
Under the Forum’s Supplemental Rule 4(c), the Panel must determine which domain names are commonly owned and elect which Respondent to proceed against, as a UDRP decision can proceed against only one Respondent. The Panel is then required to dismiss the Complaint in relation to the domain names not commonly owned by the chosen Respondent.
Accordingly, the Panel will rule only on the <officialglock19shop.com> domain name, and it will dismiss, without prejudice, the complaint regarding the <glockarmouryshop.com> domain name. See Brian Renner v. Contactprivacy.com, FA1007001335211 (Forum Aug. 26, 2010); see also Amazon Technologies, Inc. v. M M / shanwang chen / feifei lin / HUA ZHANG / L H / Eddie Nash / Heather Brooker, FA2111001973471 (Forum Dec. 17, 2021).
A. Complainant
Complainant states that it operates a firearms manufacturing company. In 1982, the Austrian engineer Gaston Glock revolutionized the firearms industry by developing and commercializing a semi-automatic pistol whose frame was made entirely from polymer. Gaston Glock gave the pistol a blocky, squared-off look that differed markedly from the way handguns had looked for nearly a century. Complainant was established in 1985 to market GLOCK pistols in the United States. Today, GLOCK pistols are the most popular pistol brand in the world. GLOCK pistols are especially popular within the United States law enforcement and military markets: over 65% of federal, state, and local agencies in the United States have been issued GLOCK pistols. GLOCK is considered by many industry observers to be the preeminent pistol brand in the United States. Complainant has rights in the GLOCK mark based on its registration in the United States in 1992.
Complainant alleges that the disputed domain name is identical or confusingly similar to its GLOCK mark as it incorporates the mark in its entirety, merely adding the generic/descriptive terms “official”, “shop”, the number “19”, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name, and is neither an authorized user nor licensee of the GLOCK mark. Respondent does not use the disputed domain name to make a bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but instead to engage in a fraudulent scheme to phish for Internet users’ personal and financial information. Respondent purports to sell Complainant’s firearms online but is unable to ship any products legally: 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.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent purports to sell Complainant’s firearms online but cannot legally do so. Respondent is either not shipping the firearms at all, or alternatively is illegally selling and shipping firearms online. Respondent uses the disputed domain name to phish for Internet users’ personal and financial information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark GLOCK and uses it to market pistols.
Complainant’s rights in its mark date back to 1992.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website 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 incorporates Complainant’s GLOCK mark in its entirety, merely adding the generic/descriptive terms “official”, “shop”, the number “19”, and the “.com” generic top-level domain (“gTLD”). Such changes may not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”); see also Twentieth Century Fox Film Corporation v. Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”). Thus the Panel finds that the <officialglock19shop.com> domain name is confusingly similar to Complainant’s GLOCK 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 response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies “Shawn Peterson” as the registrant of the disputed domain name. 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 Complainant’s products, whereas actually it cannot legally do so; Respondent takes payment from consumers and gathers personal information from them, including their names and addresses; it does not ship any products or communicate with consumers in any way after it has collected their information and money. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per 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.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (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 name.
Indeed, as already noted, the resolving website purports to offer Complainant’s products for sale without Complainant’s authorization to do so; in fact, Respondent cannot legally sell Complainant’s products. This is disruptive to Complainant’s business and demonstrates bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (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 G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also, Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Thus the Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
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).
The Panel dismisses, without prejudice, the Complaint against the <glockarmouryshop.com> domain name.
Having established all three elements required under the ICANN Policy for the domain name <officialglock19shop.com>, the Panel concludes that relief shall be GRANTED for that domain name.
Accordingly, it is Ordered that the <officialglock19shop.com> domain name be TRANSFERRED from Respondent to Complainant and that the <glockarmouryshop.com> domain name REMAIN WITH Respondent.
Richard Hill Panelist
Dated: May 25, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page