Lockheed Martin Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1908001859982
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Colombia, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com>, registered with GoDaddy.com, 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 29, 2019; the Forum received payment on August 29, 2019.
On August 30, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 September 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 24, 2019 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@lockeedmartinsavings.com, postmaster@lockheadmartinsavings.com, postmaster@lockhedmartinsavings.com, postmaster@lockheedmarinsavings.com, postmaster@lockheedmartainsavings.com, postmaster@lockheedmartimsavings.com, postmaster@lockheedmartinesavings.com, postmaster@lockheedmartinsavingplan.com, postmaster@lockheedmatinsavings.com, postmaster@lockheedmatrinsavings.com, postmaster@lockheedsavings.com, postmaster@lockheedsavingsplan.com, postmaster@lockheemartinsavings.com. Also on September 4, 2019, 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 September 25, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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.
A. Complainant
i) Complainant is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. Complainant has rights in the LOCKHEED MARTIN and LOCKHEED marks through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. LOCKHEED MARTIN – Reg. No. 2,022,037, registered Dec. 10, 1996, LOCKHEED – Reg. No. 2,627,156, registered Oct 1. 2002). See Compl. Ex. 11. Respondent’s <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN and LOCKHEED marks. Respondent incorporates Complainant’s mark in its entirety and adds the generic terms “savings” and “plan” and the “.com” generic top-level domain (gTLD). Many of Respondent’s disputed domain names also contain minor misspellings of Complainant’s LOCKHEED MARTIN mark.
ii) Respondent has no rights or legitimate interest in the disputed domain names as Respondent is not commonly known by the disputed domain names. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names for pay-per-click websites that redirect users to third-party websites or distribute malware. Respondent also engaged in the practice of typosquatting by misspelling Complainant’s marks in the disputed domain names.
iii) Respondent registered and used the disputed domain names in bad faith as Respondent is attempting to sell the disputed domain names. Respondent has also engaged in a pattern of bad-faith registration and use. Respondent attempts to disrupt Complainant’s business and attract Internet users for commercial gain by using parked webpages that offer unrelated hyperlinks or by redirecting users to third-party websites, some of which distribute malware. Respondent also attempts to conceal its identity through a privacy service. Respondent registered the disputed domain names with false contact information. Furthermore, Respondent engages in the practice of typosquatting. Finally, Respondent registered the disputed domain names with actual and constructive knowledge of Complainant’s rights in the LOCKHEED MARTIN and LOCKHEED marks.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain names were registered on the dates as shown in the
table below:
|
Domain Name |
Registration Date |
|
<lockheedmartinsavings.com> |
January 4, 2019 |
|
<lockheadmartinsavings.com> |
January 16, 2019 |
|
<lockhedmartinsavings.com> |
January 18, 2019 |
|
<lockheedmarinsavings.com> |
January 14, 2019 |
|
<lockheedmartainsavings.com> |
February 8, 2019 |
|
<lockheedmartimsavings.com> |
January 21, 2019 |
|
<lockheedmartinesavings.com> |
March 18, 2019 |
|
<lockheedmartinsavingpla.com> |
January 16, 2019 |
|
<lockheedmartinsavings.com> |
January 21, 2019 |
|
<lockheedmatrinsavings.com> |
January 31, 2019 |
|
<lockheedsavings.com> |
January 14, 2019 |
|
<lockheedsavingsplan.com> |
February 15, 2019 |
|
<lockheemartinsavings.com> |
January 31, 2019 |
2. Complainant has established rights in the LOCKHEED MARTIN and LOCKHEED marks through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. LOCKHEED MARTIN – Reg. No. 2,022,037, registered Dec. 10, 1996, LOCKHEED – Reg. No. 2,627,156, registered Oct 1. 2002).
3. The disputed domain names show links to third parties and offer malicious downloads for software.
4. The disputed domain names were offered for sale at a minimum of $500.00.
5. Respondent registered thirteen disputed domain names.
6. There are over 90 prior UDRP decisions where Respondent was found to have bad faith registration and use.
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”).
Complainant claims to have rights in the LOCKHEED MARTIN and LOCKHEED marks through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Complainant has provided the Panel with a copy of each of its USPTO trademark registration for the LOCKHEED MARTIN and LOCKHEED marks (e.g. LOCKHEED MARTIN – Reg. No. 2,022,037, registered Dec. 10, 1996, LOCKHEED – Reg. No. 2,627,156, registered Oct 1. 2002). See Compl. Ex. 11. Therefore, the Panel finds that Complainant has adequately shown its rights in the LOCKHEED MARTIN and LOCKHEED marks per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN and LOCKHEED marks. Registration of a domain name that includes a mark in its entirety and adds generic terms and gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Additionally, the minor misspellings of a mark such as eliminating, adding, or substituting letters is not sufficient to distinguish the domain name from a mark per Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (“The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). Respondent incorporates Complainant’s mark in its entirety and adds the generic terms “savings” and “plan” and the “.com” gTLD. Furthermore, Respondent’s disputed domain names also contain minor misspellings (e.g., adding an extra “a”) of Complainant’s LOCKHEED MARTIN mark. Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name 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”).
Complainant argues Respondent lacks rights or legitimate interest in the disputed domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been given license or consent to use the LOCKHEED MARTIN or LOCKHEED marks or register domain names using Complainant’s mark. 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 for the disputed domain names lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico” and there is no other evidence to suggest that Respondent was authorized to use the LOCKHEED MARTIN or LOCKHEED mark or was commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names for pay-per-click websites that redirect users to third-party websites or distribute malware. Use of a disputed domain name that redirects Internet users to third party websites or distributes malware is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees), see also Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Complainant has provided the Panel with screenshots from the disputed domain names that show links to third parties and offer malicious downloads for software. See Compl. Ex. 12. Therefore, the Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant further argues that Respondent is engaged in the practice of typosquatting by misspelling Complainant’s marks in the disputed domain names. Typosquatting involves taking advantage of Internet users’ typographical errors and may demonstrate a respondent’s lack of rights or legitimate interests in the domain name per Policy 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). Complainant argues that Respondent misspells its LOCKHEED MARTIN mark (adding the letter “a”) when registering several of the disputed domain names, thus engaging in the practice of typosquatting.
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. 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 has no rights or legitimate interests in the disputed domain names.
Complainant argues that Respondent registered and used the <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com> domain names in bad faith as Respondent is attempting to sell the disputed domain names. A respondent’s attempts to sell a disputed domain name may be evidence of bad faith per Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant has provided screenshots from “Sedo” showing the disputed domain names being offered for sale at a minimum of $500.00. See Compl. Ex. 13. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith per Policy ¶ 4(b)(i).
Complainant further argues that Respondent has a pattern of bad faith registration and use. A respondent has pattern of bad faith registration and use if they are involved in multiple UDRP decisions or registered many disputed domain names in a short period of time. See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”), see also NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (finding that registration of several infringing domain names in a case satisfies the burden imposed by the Policy ¶ 4(b)(ii)). There are thirteen disputed domain names and Complainant further provides a list of over 90 prior UDRP decisions where Respondent was found to have bad faith registration and use. See Compl. Ex. 14. Therefore, the Panel finds that Respondent has engaged in a pattern of bad faith registration per Policy ¶ 4(b)(ii)
Complainant further argues that Respondent attempts to attract Internet users for commercial gain by using parked webpages that offer unrelated hyperlinks or by redirecting users to third-party websites, some of which attempt to distribute malware. Use of a disputed domain name that resolves to a webpage that offers links to third party websites or offers malware may be evidence of bad faith per Policy ¶¶ 4(b)(iii) and/or (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”); see eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”). Complainant has provided the Panel with screenshots from Respondent’s disputed domain names that show links to third parties and offer malicious downloads for software. See Compl. Ex. 12. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant further argues that Respondent engages in the practice of typosquatting. A respondent engages in typosquatting by using a complainant’s mark with small typographical errors. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Complainant argues that Respondent misspells its LOCKHEED MARTIN and LOCKHEED marks when registering its domain names which is typosquatting. The Panel agrees with Complainant that Respondent engaged in typosquatting which constitutes bad faith per Policy ¶ 4(a)(iii).
Finally, Complainant contends Respondent has provided false contact information in connection with the registration of the disputed domain names. Use of false contact information in registering a domain name can be evidence of bad faith registration per Policy ¶ 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Complainant believes Respondent registered the disputed domain names with false information as evidence by an email that Complainant sent but was undeliverable. See Compl. Ex. 15. The Panel agrees and finds that Respondent's registration of the disputed domain names with false contact information is evidence of its bad faith per Policy ¶ 4(a)(iii).
Complainant also contends that in light of the fame and notoriety of Complainant's LOCKHEED MARTIN and LOCKHEED marks, it is inconceivable that Respondent could have registered the disputed domain names without actual and constructive knowledge of Complainant's rights in the mark. However, the Panel observes that any arguments of bad faith based on constructive notice are irrelevant because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel, however, infers due to the fame of Complainant's marks and the manner of use of the disputed domain names that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain names and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See 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.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockeedmartinsavings.com>, and <lockheadmartinsavings.com>, and <lockhedmartinsavings.com>, and <lockheedmarinsavings.com>, and <lockheedmartainsavings.com>, and <lockheedmartimsavings.com>, and <lockheedmartinesavings.com>, and <lockheedmartinsavingplan.com>, and <lockheedmatinsavings.com>, and <lockheedmatrinsavings.com>, and <lockheedsavings.com>, and <lockheedsavingsplan.com>, and <lockheemartinsavings.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: September 28, 2019
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