Lockheed Martin Corporation v. Shizuka Fujimoto / Fujimoto Shizuka
Claim Number: FA2004001891525
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America. Respondent is Shizuka Fujimoto / Fujimoto Shizuka (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinoutcomes.com>, registered with GMO Internet, Inc. d/b/a Onamae.com.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2020; the Forum received payment on April 9, 2020.
On April 12, 2020, GMO Internet, Inc. d/b/a Onamae.com confirmed by e-mail to the Forum that the <lockheedmartinoutcomes.com> domain name is registered with GMO Internet, Inc. d/b/a Onamae.com and that Respondent is the current registrant of the name. GMO Internet, Inc. d/b/a Onamae.com has verified that Respondent is bound by the GMO Internet, Inc. d/b/a Onamae.com 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 April 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2020 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@lockheedmartinoutcomes.com. Also on April 13, 2020, 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 May 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in LOCKHEED MARTIN. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a well-known aerospace company formed in 1995 by the merger of two other large companies in the same industry, one using the name LOCKHEED and the other the name MARTIN;
2. Complainant owns, inter alia, United States Patent and Trademark Office (“USPTO”) Reg. No. 2,627,156, registered October 1, 2002 for the trademark LOCKHEED and Reg. No. 2,022,037, registered December 10, 1996 for the trademark LOCKHEED MARTIN;
3. the disputed domain name was registered on August 20, 2019;
4. Complainant asserts that the disputed domain name redirects users to a website advertising pornographic services but it in fact appears to redirect to a webpage carrying links to various apps, gambling and betting sites and what appears to be escort agency services; and
5. there is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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."
As a preliminary matter, the Panel notes that the registration agreement is written in the Japanese language, thus making Japanese the language of these proceedings under Rule 11(a). However, Complainant petitions the Panel to conduct the proceedings in English because it would be more convenient to it and allegedly would not prejudice Respondent. There is no other reason given.
Rule 11(a) provides that Japanese be the language of these administrative proceeding subject to the authority of the Panel to determine otherwise, “having regard to the circumstances of the administrative proceeding”. Those circumstance may include the nature of the use of the domain name, in this case clearly abusive, and the fact that Respondent has not attempted in any form to take part in the proceedings.
On balance the Panel determines that the proceedings should continue in English.
Moving on to the substantive issues, 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights since it provides proof of registration of the trademark LOCKHEED MARTIN with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain name with the trademark, the gTLD, “.com” can be disregarded (see, for example, Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)). The disputed domain name then differs from the trademark by addition of the descriptive/non-distinctive word “outcomes”. The Panel finds that the domain name is confusingly similar to the trademark (see, for example, Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) finding confusing similarity where a disputed domain name contains complainant’s trademark and differs only by the addition of a generic or descriptive phrase and top-level domain).
Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The name of the domain name owner was concealed from the public but in consequence of these proceedings the name of the underlying owner was disclosed. That name does not carry any suggestion that Respondent might be commonly known by the domain name. Further, Complainant asserts that it did not authorize Respondent to register or use its trademark, that Respondent is not affiliated with, associated with, or otherwise endorsed by Complainant.
The use of the disputed domain name has been described. Such use is not a bona fide offering of goods or services or legitimate non-commercial or fair use under the Policy (see, for example, Lockheed Martin Corporation v. ying jie li, FA1908001860177 (Forum Oct. 15, 2019) (“Complainant provides a screenshot of the disputed domain name’s resolving website which depicts adult-oriented content. The Panel therefore agrees with Complainant and finds that Respondent fails to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).”).
A prima facie case has been made and so the onus shifts to Respondent. In the absence of a Response, the Panel finds that Respondent has not discharged the onus and finds the Respondent has no rights or interests.
Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above. The Panel has already found the disputed domain name to be confusingly similar to the trademark. The resolving website exists for commercial gain in some form or another. In terms of the Policy, the Panel finds that Respondent is using the domain name to intentionally attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the trademark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, HD U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA1312001534740 (Forum Jan. 31, 2014) (“Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant’s HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content.”).
The Panel finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedmartinoutcomes.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
May 7, 2020
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