Henry RAC Holding Corp., dba Henry Repeating Arms Company v. Youssin Fasacc
Claim Number: FA2111001972261
Complainant is Henry RAC Holding Corp., dba Henry Repeating Arms Company (“Complainant”), represented by John F. Renzulli of Renzulli Law Firm, LLP, New York, USA. Respondent is Youssin Fasacc (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <henryarmory.com>, (‘the Domain Name’) registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 5, 2021; the Forum received payment on November 5, 2021.
On November 10, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <henryarmory.com> Domain Name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 November 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 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@henryarmory.com. Also on November 15, 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 December 13, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant owns the trade mark HENRY registered, inter alia, in the USA for guns since at least 1997.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark containing it in its entirety with the addition of the generic term ‘armory’ and the gTLD “.com” which do not distinguish the Domain Name from the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The web site connected with the Domain Name is using the Complainant’s trade mark to purport to sell the Complainant’s products, but is in fact a scam site that does not provide any products once goods are paid for and so is phishing obtaining financial details for fraudulent purposes. It does not mandate the provision of legally required information for the purchasing of firearms. The address given is California in the country of Cameroon. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith disrupting the Complainant’s business and diverting Internet users for commercial gain in actual knowledge of the Complainant’s rights and business. Customers have been actually confused by the site and deceived into paying for goods that do not arrive.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark HENRY registered, inter alia, in the USA for guns since at least 1997.
The Domain Name registered in 2021 has been used for a scam web site purporting to offer the Complainant’s products, but which does not provide the products paid for by customers.
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 Domain Name consists of the Complainant's HENRY mark (which is registered, inter alia, in the USA for guns since at least 1997), the generic term ‘armory’ and a gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The addition of the generic term ‘armory’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). The panel holds that the addition of the gTLD “.com” does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and is not authorized by the Complainant. The Respondent does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name uses the Complainant's mark and refers to ‘our’ products in a confusing manner, not making it clear that there is no commercial connection with the Complainant. The Panel finds this use is deceptive. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.). There is also some evidence presented that customers have been actually confused and deceived by the site attached to the Domain Name and that since products are not provided the site is a scam. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’.).
Based on the evidence the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is deceptive and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it purports to offers guns of the Complainant using confusing language giving the impression that the site attached to the Domain Name is official when it is not. The use of pictures of the Complainant’s products on the Respondent’s site shows that the Respondent was aware of the Complainant, its rights and business.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his web site by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and/or products and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
There is some evidence that customers have been deceived by the site and have not received products that have been paid for. Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding 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).The Panel also notes that the address California in Cameroon also looks as though it is false and the site does not require information legally required to be provided upon the purchasing of firearms.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <henryarmory.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 14, 2021
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