Lockheed Martin Corporation v. Kevin Peter Jones / SakeStyle Media Group
Claim Number: FA2101001929877
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Kevin Peter Jones / SakeStyle Media Group (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinonline.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 conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2021; the Forum received payment on January 27, 2021.
On January 27, 2021, GoDaddy.com, LLC confirmed via an e-mail message addressed to the Forum that the <lockheedmartinonline.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 January 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2021 by which Respondent could file a Response to the Complaint, via an e-mail message addressed to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, as well as to the attention of postmaster@lockheedmartinonline.com. Also, on January 28, 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.
A timely Response was received and determined to be complete on February 17, 2021. Subsequently, Complainant filed an Additional Submission under date of February 18, 2021.
On February 24, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
In its Complaint and Additional Submission, Complainant alleges, inter alia, the following:
Complainant is the world’s largest defense contractor and a global security and aerospace company.
Complainant holds a registration for the LOCKHEED MARTIN service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,022,037, registered December 10, 1996, and renewed most recently as of January 18, 2017.
Complainant registered the domain name <lockheedmartin.com> on October 12, 1996, and it has employed the associated website to advertise its products and services ever since.
Respondent registered the domain name <lockheedmartinonline.com> on or about May 19, 2020.
The domain name is confusingly similar to Complainant’s LOCKHEED MARTIN service mark.
Respondent has not been commonly known by the domain name.
Respondent has not been authorized by Complainant to use the LOCKHEED MARTIN mark.
Respondent has not used the domain name in connection with a bona fide offering of goods or services.
Respondent has used the domain name to resolve to a webpage featuring pay-per-click hyperlinks to websites offering military contractor jobs and online government jobs.
Respondent lacks rights to or legitimate interests in the domain name.
Respondent currently offers the domain name for sale.
Respondent’s use of the domain name has disrupted Complainant’s business.
Respondent knew of Complainant’s rights to the LOCKHEED MARTIN mark prior to registering the domain name.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
In its Response to the Complaint, Respondent asserts, among other things, that:
Respondent has a legitimate interest in the <lockheedmartinonline.com> domain as a purchaser of the domain.
Respondent also has common law rights to use the domain name so long as it is not used in a way that infringes on trademark rights in those limited areas of commerce in which Complainant has such rights.
Respondent’s non-active use of the domain name does not diminish its rights.
Respondent has never used the domain name in a manner that infringes upon any legitimate rights of Complainant.
Respondent is not in a business competing with that of Complainant.
Respondent’s planned future use of the domain name will not result in confusion among Complainant’s customers.
Complainant has offered no evidence of any disruption of its business from Respondent’s use of the domain name.
Respondent has not made any money or acquired any other economic gain from the use of the domain name.
The mere fact that Respondent offered to negotiate in good faith to sell Complainant its rights to the domain name in order to settle the present dispute does not support a conclusion of bad faith on its part.
It is significant that Complainant came to Respondent seeking to acquire the domain by purchasing it from Respondent, not the other way around.
Respondent has the right to use the domain name to provide public criticism of Complainant, including by means of parody.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
Complainant has rights in the LOCKHEED MARTIN service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for …[its mark]… demonstrate[s] its rights in such mark for the purposes of Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <lockheedmartinonline.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN service mark. The domain name incorporates the mark in its entirety, with only the deletion of the space between its terms and the addition of the generic term “online,” which relates to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to a mark a gTLD and the generic term “finance,” which described a UDRP complainant’s financial services business conducted under that mark, did not sufficiently distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)).
See also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
As to Respondent’s deletion of the space between the terms of Complainant’s mark in creating the domain name, this is of no consequence to our analysis because domain name syntax does not permit the use of blank spaces.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the contested <lockheedmartinonline.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged <lockheedmartinonline.com> domain name, and that Complainant has not authorized Respondent to use the LOCKHEED MARTIN mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Kevin Peter Jones / SakeStyle Media Group,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, over the objection of Respondent, that Respondent has used the domain name to resolve to a webpage with pay-per-click hyperlinks to other websites offering military contractor jobs and online government jobs. Respondent contends that it has not made any money or acquired any other economic gain from the use of the domain name.
And Respondent suggests that it was not even aware of the pay-per-click nature of its resolving website. But these arguments are unavailing to Respondent. See, for example, Ashley Furniture Indus., Inc. v. Steve Olson, Case No. FA1622176 (Forum July 21, 2015):
A respondent is always responsible for the content of a parked webpage.
See also Vance Int’l, Inc. v. Jason Abend, Case No. FA0970871 (Forum June 8, 2007):
It must be presumed that respondent is aware of the general nature of the services provided by [its domain parking service] and the business model that they employ ....
Further see Lockheed Martin Corp. v. Donovan Reid, Case No. FA1798475 (Forum April 16, 2018):
Respondent’s arguments that he has not received any money arising from the use of the domain name does not count as proof of non-commercial [or] fair use because Respondent could not be unaware of the nature of the pay-per-click service as a source of indirect revenue.
Moreover, that Respondent recently redirected the domain name to resolve to a web page omitting pay-per-click links but offering the domain for sale, which occurred only after Respondent had been confronted by Complainant for its apparent misuse of the domain, cannot shield Respondent from the consequences of its prior use. See Policy ¶ 4(c)(i), which provides that a respondent might demonstrate that it has rights to or legitimate interests in a disputed domain name by showing: “before notice to you of the dispute, your use of … the domain name … in connection with a bona fide offering of goods or services….” (emphasis added). Because Respondent failed to engage in any bona fide commercial activity via the domain name before Complainant raised its concerns, this proviso is unavailable to Respondent.
Respondent further posits that it might wish to employ the subject domain name in parody of Complainant or to host critiques of Complainant. Inasmuch as the record before us does not indicate even demonstrable preparations by Respondent in the nine months since its registration to deploy the domain name for service either in parody or critique of Complainant, this proposition rings decidedly hollow.
In view of all of this, we conclude, as did a panel in The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018), that:
Respondent’s confusingly similar … domain name references a website displaying links to competing third parties …. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Accordingly, Respondent’s pay-per-click use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.
The Panel therefore finds that Complainant has amply satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <lockheedmartinonline.com> domain name, as alleged in the Complaint, is disruptive of Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name, in that it prevents Complainant from deploying its LOCKHEED MARTIN mark in a corresponding domain name or otherwise controlling its mark. See, for example, Yahoo! Inc. v. glenn coffey, Case No. FA1593862 (Forum January 20, 2015):
Complainant argues that Respondent’s use of the … domain name serves to disrupt Complainant’s business as the domain name interferes with Complainant’s ability to control its mark…. Prior panels have supported this reading of Policy ¶ 4(b)(iii)....
It is also plain from the evidence that Respondent knew of Complainant and its rights in the LOCKHEED MARTIN mark when it registered the questioned
<lockheedmartinonline.com> domain name. This further demonstrates Respondent’s bad faith in registering it. See, for example, iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018):
Respondent’s prior knowledge [of a UDRP complainant’s mark, and, therefore, its bad faith registration of a confusingly similar domain name] is evident from the notoriety of Complainant’s … trademark as well as from Respondent’s use of its trademark[-] laden domain name to direct internet traffic to a website which is a direct competitor of Complainant.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <lockheedmartinonline.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 10, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page