GLOCK, Inc. v. Tyler Posey
Claim Number: FA2105001943939
Complainant is GLOCK, Inc. (“Complainant”), represented by Gavin M. Strube of Renzulli Law Firm, LLP, New York, USA. Respondent is Tyler Posey (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <austrianglocks.com>, registered with NameCheap, Inc..
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 May 5, 2021; the Forum received payment on May 5, 2021.
On May 5, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <austrianglocks.com> 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 May 6, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 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@austrianglocks.com. Also on May 6, 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 June 1, 2021, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it manufactures and sells pistols. 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. Complainant has rights in the GLOCK mark through its registration in the United States in 1992.
Complainant alleges that the disputed domain name is confusingly similar to its mark since it incorporates the mark in its entirety, merely adding the geographically descriptive term “Austrian”, the letter “s” which changes the proper noun into a plural, and the generic top level domain (“gTLD”) “.com.”
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and Complainant has not licensed or authorized Respondent to use the GLOCK mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to purport to sell Complainant’s products, which it cannot legally deliver: 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. Instead, the resolving website is used fraudulently to collect payment and personal information from internet users.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent trades off the good will associated with the GLOCK mark to attract users to Respondent’s website which purports illegally to sell products under Complainant’s mark, but which is instead used to collect payment and personal information from visitors.
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 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to sell Complainant’s firearms 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 mark in its entirety, merely adding the geographically descriptive term “Austrian”, the letter “s” which changes the proper noun into a plural, and the generic top level domain (“gTLD”) “.com”. In general, altering the domain name by one letter and adding a descriptive term is insufficient to distinguish the disputed domain from a complainant’s mark under Policy ¶ 4(a)(i). See Wells Fargo & Co. v. Bogucki, FA 147305 (Forum Apr. 16, 2003) (finding that the <wellfargobank.com> domain name is confusingly similar to the WELLS FARGO mark, because altering the mark by one letter and adding “…the word ’bank,’ a word that both describes the type of business that Complainant engages in and is included in its <wellsfargobank.com> domain name, does not alleviate any confusing similarity.”). Adding a geographic term and a gTLD also do not negate confusing similarity under Policy ¶ 4(a)(i). See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s 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 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 Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here the record shows that the registrant of the disputed domain name is “Tyler Posey”. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent engages in a fraudulent scheme to steal personal and financial information of consumers. Specifically, the resolving website purports to sell Complainant’s pistols and accessories. However, Respondent is unable legally to ship any firearm product. Federal law requires firearms purchased online to be shipped to a Federal Firearms Licensee (“FFL”) first, but Respondent’s “checkout” page has no place to input this legally required information. The purpose of Respondent’s “checkout” page is to take payment from consumers and gather personal information from them, including names and addresses. This is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”); see also Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). Thus, the Panel finds that Respondent fails to use the disputed domain name 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 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, Respondent uses the disputed domain name to make illegal offers and to phish for user information. In general, a respondent who uses a confusingly similar domain name to acquire the personal and financial information of Internet users is acting in bad faith. Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also 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). The Panel therefore finds bad faith registration and use 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 Complainant’s mark and 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <austrianglocks.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 1, 2021
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