Henry RAC Holding Corp., dba Henry Repeating Arms Company v. Gerry Easton / Lucas Harper / aretesteroids / Guide Mail / Matt Rodney / RESTRO ENGOH / CEO / bryan maddison / Russell Phillips
Claim Number: FA2212002023493
Complainant is Henry RAC Holding Corp., dba Henry Repeating Arms Company ("Complainant"), United States, represented by Gavin M. Strube of Renzulli Law Firm, LLP, United States. Respondent is Gerry Easton / Lucas Harper / aretesteroids / Guide Mail / Matt Rodney / RESTRO ENGOH / CEO / bryan maddison / Russell Phillips ("Respondent"), United States and Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <henryarmshop.com>, <henryarmsales.com>, <henrygunsusa.shop>, <henryrepeatingarmsusa.com>, <henryrepeatingfirearms.com>, <henryrifleshopusa.com>, <henryriflestoreusa.com>, <henryusafirearmstore.com>, <shophenryfirearms.com>, and <usahenryfirearms.com>. The domain names are registered with NameSilo, LLC, with the exceptions of <henryrepeatingfirearms.com>, which is registered with NameCheap, Inc., and <henryrifleshopusa.com> and <usahenryfirearms.com>, which are 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on December 9, 2022; Forum received payment on December 9, 2022.
On December 12, 13, and 15, 2022, Forum received confirmation by email from the relevant registrars of the current registrant of each domain name as listed below, including a verification that the registrant is bound by the respective 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").
|
henryarmshop.com |
Lucas Harper |
|
henryarmsales.com |
Guide Mail / Guide Mail |
|
henrygunsusa.shop |
Matt Rodney |
|
henryrepeatingarmsusa.com |
aretesteroids / Lucas Harper |
|
henryrepeatingfirearms.com |
Gerry Easton |
|
henryrifleshopusa.com |
Russell Phillips |
|
henryriflestoreusa.com |
aretesteroids / Lucas Harper |
|
henryusafirearmstore.com |
CEO / RESTRO ENGOH |
|
shophenryfirearms.com |
aretesteroids / Lucas Harper |
|
usahenryfirearms.com |
bryan Maddison |
On December 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@henryarmshop.com, postmaster@henryarmsales.com, postmaster@henrygunsusa.shop, postmaster@henryrepeatingarmsusa.com, postmaster@henryrepeatingfirearms.com, postmaster@henryrifleshopusa.com, postmaster@henryriflestoreusa.com, postmaster@henryusafirearmstore.com, postmaster@shophenryfirearms.com, postmaster@usahenryfirearms.com. Also on December 19, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 registrations as technical, administrative, and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On January 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 disputed domain names are under common control. 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 WIPO Overview of WIPO Panel Views on Selected UDRP Questions sets forth factors that are normally considered when a complainant is filed against multiple respondents:
[P]anels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.11 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/.
Complainant notes that the disputed domain names were registered in the names of various privacy registration services, and alleges that they were in fact registered by a single entity operating under multiple aliases and using false names and contact information. The Panel also notes the similarities in the domain names, registration information, and website content, and the fact that Respondent has not come forward to dispute the allegation that it is one entity acting under multiple aliases, nor to object to the inclusion of all of the domain names in this proceeding. Under the circumstances, the Panel considers it appropriate to treat the disputed domain names as being under the common control of a single person or entity. See, e.g., Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Technofix Solutions, FA 2007595 (Forum Sept. 8, 2022) (treating domain names as being under common control in similar circumstances); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Ninho Brown / david william, FA 2004879 (Forum Aug. 19, 2022) (same); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Mason Green / Porte Luke, FA 1989081 (Forum Apr. 20, 2022) (same).
A. Complainant
Complainant manufactures and distributes firearms and related goods in the United States under the trademark HENRY. Complainant owns a United States trademark registration for HENRY in standard character form, issued in 2001 and reflecting a first use date of 1997. Complainant states that it is the leading manufacturer of lever-action rifles and shotguns in the United States.
The disputed domain names <henryarmshop.com>, <henryarmsales.com>, <henrygunsusa.shop>, <henryrepeatingarmsusa.com>, <henryrepeatingfirearms.com>, <henryrifleshopusa.com>, <henryriflestoreusa.com>, <henryusafirearmstore.com>, <shophenryfirearms.com>, and <usahenryfirearms.com> were registered via various privacy registration services between February and August 2022. The domain names are being used for websites that display Complainant's mark and logo, and that advertise and purport to sell Complainant's products. Complainant alleges, with supporting evidence, that Respondent uses these websites to take payment from consumers and gather personal information, but does not actually ship any products, and in fact is unable to legally ship any of the products that Respondent purports to sell. Complainant states that Respondent is not commonly known by the domain name and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that each of the disputed domain names is confusingly similar to its HENRY mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain names <henryarmshop.com>, <henryarmsales.com>, <henrygunsusa.shop>, <henryrepeatingarmsusa.com>, <henryrepeatingfirearms.com>, <henryrifleshopusa.com>, <henryriflestoreusa.com>, <henryusafirearmstore.com>, <shophenryfirearms.com>, and <usahenryfirearms.com> all incorporate Complainant's registered HENRY trademark, adding generic terms such as "guns," "firearms," "sales," "store," and "USA," and the ".com" or ".shop" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Technofix Solutions, supra (finding <henryusashop.com> and <henrygunsusa.com> confusingly similar to HENRY); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Ninho Brown / david william, supra (finding <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> confusingly similar to HENRY); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Mason Green / Porte Luke, supra (finding <henryfirearmstore.com> and <henryusastore.com> confusingly similar to HENRY). The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
Each of the disputed domain names incorporates Complainant's registered mark without authorization. The domain names are being used for misleading and likely fraudulent websites that attempt to pass off as Complainant and purport to offer its products for sale. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Technofix Solutions, supra (finding lack of rights or interests in similar circumstances); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Ninho Brown / david william, supra (same); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Mason Green / Porte Luke, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used privacy registration services and what the Panel infers to be false names and contact information to register several domain names incorporating Complainant's mark. The domain names are being used for misleading and likely fraudulent websites that attempt to pass off as Complainant and purport to offer its products for sale. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Technofix Solutions, supra (finding bad faith registration and use in similar circumstances); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Lucas Harper / aretesteroids / Ninho Brown / david william, supra (same); Henry RAC Holding Corp., dba Henry Repeating Arms Co. v. Mason Green / Porte Luke, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <henryarmshop.com>, <henryarmsales.com>, <henrygunsusa.shop>, <henryrepeatingarmsusa.com>, <henryrepeatingfirearms.com>, <henryrifleshopusa.com>, <henryriflestoreusa.com>, <henryusafirearmstore.com>, <shophenryfirearms.com>, and <usahenryfirearms.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 16, 2023
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