Hornady Manufacturing Company v. Danielle Yost / Assoue Randy / AMAH ENGOH / CEO / Lucas Harper / aretesteroids / Paul Harry / Domain Administrator / Jewella Privacy - 43931 / Jewella Privacy LLC Privacy ID# 892654 / David G. Liedtke / greeb larisma / pharm
Claim Number: FA2308002056310
Complainant is Hornady Manufacturing Company (“Complainant”), represented by Richard P. Jeffries of Cline Williams Wright Johnson & Oldfather, L.L.P., Nebraska, USA. Respondent is Danielle Yost / Assoue Randy / AMAH ENGOH / CEO / Lucas Harper / aretesteroids / Paul Harry / Domain Administrator / Jewella Privacy - 43931 / Jewella Privacy LLC Privacy ID# 892654 / David G. Liedtke / greeb larisma / pharm (“Respondent”), West Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hornadyammo.com>, <hornadyammocenter.com>, <hornadyammowarehouse.com>, <hornadyarmory.com>, <hornadybullets.com>, <hornadyreloading.com>, <hornadyshop.com>, <hornadyammostore.com>, <hornadyammocenter.net>, and <usahornadyammostore.com>, registered with Godaddy.Com, Llc; Namecheap, Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Namesilo, Llc; Web Commerce Communications Limited Dba Webnic.Cc; Above.Com Pty Ltd.; Sea Wasp, Llc; Dynadot Inc; and Hostinger Operations, Uab.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 7, 2023. Forum received payment on August 7, 2023.
On Aug 07, 2023; Aug 08, 2023; Aug 09, 2023; Aug 10, 2023; Aug 16, 2023, Godaddy.Com, Llc; Namecheap, Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Namesilo, Llc; Web Commerce Communications Limited Dba Webnic.Cc; Above.Com Pty Ltd.; Sea Wasp, Llc; Dynadot Inc; and Hostinger Operations, Uab confirmed by e-mail to Forum that the <hornadyammo.com>, <hornadyammocenter.com>, <hornadyammowarehouse.com>, <hornadyarmory.com>, <hornadybullets.com>, <hornadyreloading.com>, <hornadyshop.com>, <hornadyammostore.com>, <hornadyammocenter.net>, and <usahornadyammostore.com> domain names are registered with Godaddy.Com, Llc; Namecheap, Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Namesilo, Llc; Web Commerce Communications Limited Dba Webnic.Cc; Above.Com Pty Ltd.; Sea Wasp, Llc; Dynadot Inc; and Hostinger Operations, Uab and that Respondent is the current registrant of the names. Godaddy.Com, Llc; Namecheap, Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Namesilo, Llc; Web Commerce Communications Limited Dba Webnic.Cc; Above.Com Pty Ltd.; Sea Wasp, Llc; Dynadot Inc; and Hostinger Operations, Uab have verified that Respondent is bound by the Godaddy.Com, Llc; Namecheap, Inc.; Hosting Concepts B.V. D/B/A Registrar.Eu; Namesilo, Llc; Web Commerce Communications Limited Dba Webnic.Cc; Above.Com Pty Ltd.; Sea Wasp, Llc; Dynadot Inc; and Hostinger Operations, Uab registration agreements 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 August 23, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 2023 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@hornadyammo.com, postmaster@hornadyammocenter.com, postmaster@hornadyammowarehouse.com, postmaster@hornadyarmory.com, postmaster@hornadybullets.com, postmaster@hornadyreloading.com, postmaster@hornadyshop.com, postmaster@hornadyammostore.com, postmaster@hornadyammocenter.net, and postmaster@usahornadyammostore.com. Also on August 23, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 13, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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
Paragraph 3(c) of 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”. Paragraph 1(d) of the Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
Complainant submits that the Domain Names are highly similar to Complainant’s domain name <hornady.com>, center on a few registrars and use domain anonymization. After the domains are de-anonymized, the domains are registered by apparently fictitious people with obviously defective addresses, similar to Hornady Manufacturing Co. v. aretesteroids / Lucas Harper, FA 1980471 (Forum Feb. 14, 2022) and Hornady Manufacturing Co. v. Travis Malone and Ndille Brandon, FA 1986579 (Forum Mar. 31, 2022). Two of the Domain Names resolve to active web sites which contain much of the same text and format, permit only payment through cryptocurrency, do not have substantive contact information available, infringe on the Complainant’s trademarks in the same manner, and appear highly similar to the web sites of the Respondent in Hornady Manufacturing Co. v. aretesteroids / Lucas Harper, FA 1980471 (Forum Feb. 14, 2022) and Hornady Manufacturing Co. v. Travis Malone and Ndille Brandon, FA 1986579 (Forum Mar. 31, 2022). Accordingly, it is reasonable to believe all of the Domain Names are registered to the same Respondent, using fictitious aliases.
The Panel accepts that the Domain Names are effectively controlled by the same person or entity, which is operating under several aliases. Hence this decision refers to Danielle Yost / Assoue Randy / AMAH ENGOH / CEO / Lucas Harper / aretesteroids / Paul Harry / Domain Administrator / Jewella Privacy - 43931 / Jewella Privacy LLC Privacy ID# 892654 / David G. Liedtke / greeb larisma / pharm as “Respondent”.
A. Complainant
Complainant, Hornady Manufacturing Co., (“Hornady”) is a world-famous
manufacturer of ammunition and related products. It has continuously offered products under the HORNADY mark since 1949 and has obtained United States registrations for the HORNADY word mark and a number of designs. Complainant’s principal website is “www.hornady.com”. The Domain Names are confusingly similar to Complainant’s HORNADY mark.
Respondent has no rights or legitimate interests in respect of the Domain Names. It has not been commonly known by any of the Domain Names and is not making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert customers or tarnish the trademark or service mark at issue. Some of
the Domain Names are simply parked, but others mirror the fraudulent web sites Hornady Manufacturing Co. v. aretesteroids / Lucas Harper, <hornadyammodepot.com>, FA 1980471 (Forum Feb. 14, 2022) and Hornady Manufacturing Co. v. Travis Malone and Ndille Brandon, <hornadyammunition.com> and <hornadyammunitionstore.com>, FA 1986579 (Forum Mar. 31, 2022).
Respondent has registered and used the Domain Names in bad faith, in that it has intentionally attempted to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or
endorsement of its websites or location or of a product or service on its website or location. Respondent’s websites, where active, display the HORNADY word mark or design mark and display Complainant’s products bearing the Complainant’s marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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”).
Complainant has shown that it has rights in the HORNADY mark both at common law and through registrations with the USPTO (e.g., Reg. No. 3,189,141, registered on December 26, 2006). The Panel finds each of Respondent’s <hornadyammo.com>, <hornadyammocenter.com>, <hornadyammowarehouse.com>, <hornadyarmory.com>, <hornadybullets.com>, <hornadyreloading.com>, <hornadyshop.com>, <hornadyammostore.com>, <hornadyammocenter.net>, and <usahornadyammostore.com> Domain Names to be confusingly similar to Complainant’s HORNADY mark, only differing by the addition of descriptive terms, most relating to ammunition and sales outlets: “ammo”, “ammocenter”, “ammowarehouse”, “armory”, “bullets”, “reloading”, “shop”, “ammostore” and the geographic term “usa”, which do nothing to distinguish the Domain Names from the mark, and the inconsequential “.com” and “net” generic top-level domains (“gTLDs”), which may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the Domain Names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the Domain Names or names corresponding to the Domain Names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the Domain Names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Domain Names were registered on the following dates:
<hornadybullets.com> March 20, 2002,
<hornadyreloading.com> January 24, 2005,
<hornadyammo.com> February 24, 2005,
<hornadyarmory.com> September 27, 2021,
<hornadyammocenter.com> September 29, 2021,
<hornadyammostore.com> May 13, 2022,
<hornadyshop.com> May 26, 2022,
<usahornadyammostore.com> May 29, 2022,
<hornadyammocenter.net> September 24, 2022,
<hornadyammowarehouse.com> November 14, 2022.
The <hornadybullets.com>, <hornadyreloading.com> and <hornadyammo.com> domain names were registered before Complainant registered the first of its registered HORNADY marks. However, the sworn affidavit of Jason Hornady, vice president of Complainant, attests to the truth of the claim in the Complaint that Complainant has continuously offered ammunition and related products under the HORNADY mark since 1949 and that no other manufacturer of similar goods uses any name similar to HORNADY. The Panel therefore finds that Complainant had common law rights in the HORNADY mark when those three domain names were registered.
The seven remaining domain names were registered many years after the registration of Complainant’s registered marks.
The domain names <hornadyarmory.com> and <usahornadyammostore.com> resolve to websites prominently displaying Complainant’s HORNADY mark and purporting to offer Hornady ammunition for sale online. The remaining domain names do not resolve to active websites.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the Domain Names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s HORNADY mark when Respondent registered each of the Domain Names and that Respondent is using the <hornadyarmory.com> and <usahornadyammostore.com> domain names intentionally to attempt to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s websites and of the goods promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Further, although the remaining domain names do not resolve to active websites, as in the leading case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, there is no conceivable active use that could be made of those domain names that would not amount to an infringement of Complainant’s rights in its HORNADY mark. Accordingly, the Panel finds that Respondent’s passive use of those domain names demonstrates registration and use in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hornadyammo.com>, <hornadyammocenter.com>, <hornadyammowarehouse.com>, <hornadyarmory.com>, <hornadybullets.com>, <hornadyreloading.com>, <hornadyshop.com>, <hornadyammostore.com>, <hornadyammocenter.net>, and <usahornadyammostore.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 14, 2023
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