GLOCK, Inc. v. kittens / Dolly Lama
Claim Number: FA2102001933130
Complainant is GLOCK, Inc. (“Complainant”), represented by John F. Renzulli of Renzulli Law Firm, LLP, New York, USA. Respondent is kittens / Dolly Lama (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <glocks.org>, registered with 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 23, 2021; the Forum received payment on February 23, 2021.
On February 23, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <glocks.org> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the 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 March 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 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@glocks.org. Also on March 1, 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 March 25, 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 promotes and sells one of the most popular brands of pistols in the United States. 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. All pistols manufactured by Complainant and distributed in the United States bear the GLOCK trademark in a stylized logo format. 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 GLOCK mark, only differing by the addition of the letter “s” along with the “.org” generic top-level domain (“gTLD”).
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 is neither an authorized user nor licensee of 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. Instead, Respondent attempts to pass itself off as Complainant, purporting to sell Complainant’s firearms and accessories in order to perpetuate a phishing scheme. Specifically, the resolving website purports to sell genuine GLOCK pistols and accessories for these pistols. Respondent only accepts payment through wire transfers or digital currency such as bitcoin. Respondent takes payment from consumers and gathers personal information from them, 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 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.
Respondent registered and uses the disputed domain name in bad faith. Respondent passes itself off as Complainant to obtain personal and financial information from Complainant’s customers by purporting to offer Complainant’s goods for sale, when in fact it cannot legally sell them.
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 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 mark in its entirety, only differing by the addition of the letter “s” and the “.org” gTLD. Such alterations do not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is neither an authorized user nor licensee of Complainant’s GLOCK mark. Respondent it is not commonly known by the disputed domain name: when no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a 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 WHOIS information of record indicates that the disputed domain name was registered by “kittens / Dolly Lama.” Thus, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <glocks.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 25, 2021
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