Westmore · UDRP DecisionSmithwessonbarrel.name
The Panel ordered transfer of <smithwessonbarrel.name>. It found the domain confusingly similar to the Complainant’s SMITH & WESSON mark because it incorporated the mark in its entirety and added the firearm-related generic term “barrel.” The Complainant’s unrebutted assertions established that the Respondent lacked rights or legitimate interests. Bad-faith registration followed from the well-known character of the mark and the implausibility that the Respondent was unaware of it, while bad-faith use was established by a website advertising firearm products, including products made by the Complainant’s competitors.
The timeline behind smithwessonbarrel.name
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind smithwessonbarrel.name — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how a domain that combines an entire well-known mark with a product-specific generic term may remain confusingly similar and may reinforce an inference of targeting. The same targeting was reflected in the domain’s use for a website operating within the trademark owner’s industry and advertising competitor products. The Respondent’s default did not automatically decide the case, but it left the Complainant’s prima facie showing on rights or legitimate interests unrebutted.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Smith & Wesson Corp. v. Allan Hershkop Case No. D2018-0160 1. The Parties The Complainant is Smith & Wesson Corp. of Springfield, Massachusetts, United States of America (“United States”), represented by Ballard Spahr, LLP, United States. The Respondent is Allan Hershkop of Ramsay, Massachusetts, United States. 2. The Domain Name and Registrar The disputed domain name <smithwessonbarrel.name> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2018. On January 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 27, 2018, the Registrar transmitted by email to the Center its verification response providing the registrant and contact information for the disputed domain name. The Center sent an email communication to the Complainant on February 8, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 12, 2018. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 16, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 8, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 14, 2018. The Center appointed Evan D. Brown as the sole panelist in this matter on March 20, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant was founded in 1852, was one of the first firearm manufacturers in the United States, and continues to be a leader in the firearm industry. It owns trademark registrations in jurisdictions around the world for the mark SMITH & WESSON for firearms and related products and services. For example, the Complainant owns United States Reg. No. 95,164, issued on February 3, 1914 for the mark SMITH & WESSON, having a date of first use of 1857. The Respondent registered the disputed domain name on May 31, 2017 and used it to establish a website called Smith Wesson Barrel, displaying available used firearms and firearm accessories and links to sales for those items on eBay. Some of the listed items were manufactured by competitors of the Complainant. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant undoubtedly has rights in the mark SMITH & WESSON. The mark is among the most recognizable firearm brands in the world, having been in widespread use for many years. The disputed domain name is confusingly similar to this mark. It contains the words comprising the mark in its entirety, accompanied by the word “barrel” – which is a generic term referring to a part of a firearm. This additional material (along with the generic Top-Level Domain “.name”) does not meaningfully distinguish the disputed domain name from the Complainant’s mark for purposes of the Policy. Accordingly, the Panel finds in favor of the Complainant on this first element of the Policy. B. Rights or Legitimate Interests The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, and if that prima facie showing remains unrebutted by the Respondent. The Complainant asserts, among other things, that (1) there is no relationship between the Complainant and the Respondent, nor is there any authorization for the Respondent to use the disputed domain name, (2) there is no indication the Respondent was known for its use of the disputed domain name, and (3) the Respondent used the disputed domain name to “bait” users into visiting the Respondent’s website and not as a legitimate descriptor of the Respondent’s goods or services. These assertions establish the Complainant’s prima facie case. The Respondent has not answered the Complainant’s assertions, and, seeing no basis in the record to overcome the Complainant’s prima facie showing, the Panel finds that the Complainant has satisfied this second Policy element. C. Registered and Used in Bad Faith Because the Complainant’s mark is well-known, it is implausible to believe that the Respondent was not aware of that mark when it registered the disputed domain name. In the circumstances of this case, such a showing is sufficient to establish bad faith registration of the disputed domain name. Bad faith use is clear from the Respondent’s activities of using the disputed domain name to provide a website advertising the sale of firearm products, including those of competitors of the Complainant. For these reasons, the Panel finds that the Complainant has successfully met this third Policy element 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <smithwessonbarrel.name> be transferred to the Complainant. Evan D. Brown Sole Panelist Date: April 4, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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