Henry RAC Holding Corp., dba Henry Repeating Arms Company v. Lucas Harper / aretesteroids / Ninho Brown / david william
Claim Number: FA2207002004879
Complainant is Henry RAC Holding Corp., dba Henry Repeating Arms Company (“Complainant”), represented by Gavin M. Strube of Renzulli Law Firm, LLP, New York, USA. Respondent is Lucas Harper / aretesteroids / Ninho Brown / david william (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com>, registered with Namesilo, Llc; Namecheap, Inc., ; Hostinger, UAB.
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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 19, 2022; the Forum received payment on July 19, 2022.
On July 19, 2022; July 20, 2022, Namesilo, Llc; Namecheap, Inc., ; Hostinger, UAB confirmed by e-mail to the Forum that the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names are registered with Namesilo, Llc; Namecheap, Inc., ; Hostinger, UAB and that Respondent is the current registrant of the names. Namesilo, Llc; Namecheap, Inc., ; Hostinger, UAB has verified that Respondent is bound by the Namesilo, Llc; Namecheap, Inc., ; Hostinger, UAB 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 July 25, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 15, 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@henriflestore.com, postmaster@henryfirearmsstore.com, postmaster@henryriflestore.com, postmaster@usahenryfirearmstore.com, postmaster@henryusaarms.com. Also on July 25, 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 August 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC 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 submitted 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. As Complainant has put it concisely and accurately in the Complaint, “…(u)pon information and belief, Respondent is using multiple aliases and false identities to perpetuate nearly identical scams across all the Disputed Domain Names.”
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.”
Complainant contends that each of the Disputed Domain Names was registered by a single entity using multiple aliases. Complainant contends that all the disputed domain names differ from Complainant’s mark in roughly similar ways, using words such as “firearms” or “rifle.” Complainant also argues that the available WHOIS Information is similar for each of the domain names. See Compl. Ex. B. Furthermore, each of the sites looks substantially similar. See Compl. Ex. D-F. The Panel agrees with those contentions, which are established by the evidence.
Having regard to all of those circumstances, the Panel finds that the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
The proceeding has therefore been properly instituted and may go forward on that basis.
A. Complainant
Complainant made the following contentions.
Complainant is a New Jersey-based gun manufacturing and retail company. Complainant claims rights in the HENRY mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,482,079 registered Aug. 28, 2001). See Compl. Ex. C. The <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names are confusingly similar because each either fully incorporates Complainant’s registered mark or incorporates a dominant portion of it differing only through the additions of the generic words “rifle”, “store”, “firearm”, “firearms”, “usa”, and/or “arms” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the HENRY mark in any way. Additionally, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to engage in a phishing scheme.
Respondent registered and uses the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names in bad faith. Respondent diverts internet users to its competing website. Additionally, Respondent uses the disputed domain names in furtherance of a phishing scheme in which they attempt to collect personal and financial information of users on their sites by passing off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States gun manufacturing and retail services company.
2. Complainant has established its trademarks rights in the HENRY mark through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,482,079 registered Aug. 28, 2001).
3. Respondent registered the <henriflestore.com> domain name on March 4, 2022, the <henryfirearmsstore.com> domain name on March 29, 2022, the <henryriflestore.com> domain name on March 6, 2022, the <usahenryfirearmstore.com> domain name on December 30, 2021 and the <henryusaarms.com> domain name on June 10, 2022.
4. Respondent has caused the disputed domain names to be used to engage in a phishing scheme and to pass itself off as Complainant.
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 next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s HENRY mark. Complainant argues that Respondent’s <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names are confusingly similar to Complainant’s HENRY mark. The addition of a generic phrase and a gTLD generally fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Furthermore, adoption of a dominant portion of a legitimate mark into a domain name can bolster claims of confusing similarity. See Supercell Oy v. WhoisProxy.com Ltd / Jordan Rash, Application Automation LLC, D2015-1445 (WIPO Oct 9, 2015) (determining that Respondent’s incorporation of the word “clash” into a domain conferred standing because “clash was identical to Complainant’s CLASH OF CLANS mark). The disputed domain names either fully incorporate Complainant’s registered mark or incorporate a dominant portion of it, differing only through the addition of the generic words “rifle”, “store”, “firearm”, “firearms”, “usa”, and/or “arms” along with the “.com” gTLD. Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
(a) Respondent has chosen to take Complainant’s HENRY mark and to use it in its domain names, adding the generic words “rifle”, “store”, “firearm”, “firearms”, “usa”, and/or “arms” to the mark;
(b) Respondent registered the <henriflestore.com> domain name on March 4, 2022, the <henryfirearmsstore.com> domain name on March 29, 2022, the <henryriflestore.com> domain name on March 6, 2022, the <usahenryfirearmstore.com> domain name on December 30, 2021 and the <henryusaarms.com> domain name on June 10, 2022;
(c) Respondent has caused the disputed domain names to be used to engage in a phishing scheme and to pass itself off as Complainant;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues Respondent lacks rights or legitimate interest in the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been given license or consent to use the HENRY mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information associated with the disputed domain names does not indicate that Respondent is known by the disputed domain names. See WHOIS Information. The Respondent is known as “Lucas Harper,” / “aretesteroids,” / “Ninho Brown,” and “david william.” See Registrar Verification Email. Respondent was not given rights to use the HENRY mark nor was it commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names and was not granted usage rights per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent is not using the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. As Complainant has put it concisely and accurately in the Complaint, “Respondent is not engaged in a bona fide commercial enterprise, he is engaged in a fraudulent scheme to steal the personal and financial information of consumers”. The Panel agrees. Under Policy ¶¶ 4(c)(i) and (iii), engaging in phishing is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. 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).”). Here, Complainant provides screenshots of the resolving webpage asking for users’ contact and financial information. See Compl. Ex. F. As the Panel agrees, it finds that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and 4(c)(iii)).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names in bad faith by diverting users to its website, while causing confusion among users. Under Policy ¶ 4(b)(iii), using a disputed domain name to divert users to a website offering Complainant’s goods for sale while causing confusion among consumers is evidence of bad faith registration and use. See 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).”). The Panel notes that the disputed domain names’ resolving websites purport to offer Complainant’s products for sale. See Compl. Ex. E. As the Panel agrees, it finds Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii).
Secondly, Complainant contends that Respondent is unlikely to be actually shipping the firearms, as doing so would be illegal. If further information were to determine Respondent is selling and shipping firearms, past Panels have found this to be evidence of bad faith registration and use by engaging in illegal activity 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). As the potential for that conduct exists, the Panel finds that this is due to the Respondent having registered and used the domain names. The Panel therefore finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Thirdly, Complainant alleges that Respondent registered and uses the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names to pass itself off as Complainant and conduct a phishing scheme to Internet users seeking technical support for Complainant’s services. Using an infringing domain name to pass off as a trademark holder in furtherance of a phishing scheme may demonstrate bad faith registration and use under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). As previously noted, Complainant provides evidence of Respondent seeking users’ financial and personal information as well as fraudulent listings of Complainant’s products. See Compl. Exs. E & F. Thus, as the Panel agrees, it finds bad faith registration and use under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <henriflestore.com>, <henryfirearmsstore.com>, <henryriflestore.com>, <usahenryfirearmstore.com>, and <henryusaarms.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: August 19, 2022
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