Lockheed Martin Corporation v. Takaya Miyoshi / Gravity GK
Claim Number: FA2103001935555
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Takaya Miyoshi / Gravity GK (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skunk-works.life>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 5, 2021; the Forum received payment on March 5, 2021.
On March 9, 2021, GMO Internet, Inc. d/b/a Onamae.com confirmed by e-mail to the Forum that the <skunk-works.life> 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 March 10, 2021, the Forum served the Complaint and all Annexes, including a English and Japanese language Written Notice of the Complaint, setting a deadline of March 30, 2021 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@skunk-works.life. Also on March 10, 2021, the English and Japanese language 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 April 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Japanese, thereby making the language of the proceedings Japanese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Commencement Notification in Japanese and has chosen not to respond to the Complaint; the resolving website is in English and Japanese. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. It is primarily engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products, and services. Complainant maintains over 590 facilities in all 50 states throughout the United States, as well as international business locations in 52 nations and territories. In 2017, Complainant’s sales exceeded $51 billion. Today, the majority of Complainant’s business is with the U.S. Department of Defense and U.S. federal government agencies, but its business also encompasses commercial, as well as international government sales of products, services, and platforms. Over the years, Complainant’s advanced technology has produced, or been incorporated into, military aircraft, missiles, rockets, satellites, and various NASA systems (including production of the space shuttle’s external fuel tank). Among numerous other accomplishments, Complainant designed and built parts of the Apollo spacecraft which landed the first man on the moon in 1969. Today, Complainant is building the next generation of human exploration spacecraft which will eventually carry astronauts on deep-space missions, including to Mars. Complainant’s Skunk Works division was first conceived in 1943 to build America’s first jet fighter. Since at least as early as 1945, the SKUNK WORKS mark have been synonymous in the public mind with Complainant’s advanced technology and cutting-edge research and development services. Complainant (including its various predecessor companies) has used the SKUNK WORKS mark in connection with the engineering, development, and design of a number of iconic aircraft, including America’s first fighter jet, America’s first supersonic attack plane, the U-2 spy plane, and the world’s first pure stealth fighter—which many Americans witnessed on CNN in 1991 during Operation Desert Storm. Today, the world-renowned Skunk Works division builds the most advanced military aircraft in the world. With a 75-year track record of pioneering aircraft systems, the Skunk Works team has developed a reputation for solving hard problems quickly, quietly, and at or under cost and schedule requirements. Since 1943, Skunk Works projects have won at least seven Collier trophies, the most prestigious award in the aeronautics industry. In 2007, the Skunk Works division received the National Medal of Technology and Innovation, America’s highest honor for technological achievement bestowed by the president of the United States. The Skunk Works division received the award for its impressive track record of developing cutting-edge aircraft, technologies, and systems solutions for the U.S. government, including development of advanced aircraft technologies critical to national defense, as well as for the introduction of operational “stealth” capability that changed the landscape of U.S. war-fighting capabilities. Skunk Works products play an important role in the national security of the United States and more than 70 other countries. The division has a workforce of more than 25,000, and pre-eminent expertise in advanced aircraft design and production, modification and support, stealth technology, and systems integration. Complainant’s Skunk Works division has been the subject of extensive third-party publicity, appearing as the subject of books, articles, and television shows, including Nova’s 2003 television documentary Battle of the X-Planes. As the LA Times aptly stated in 2013: “Few places in the aerospace industry are as revered as [Complainant’s] Skunk Works.” Complainant has rights in the SKUNK WORKS mark through its registration of the mark in the United States in 2002. The mark is also registered in Japan.
Complainant alleges that the disputed domain name is confusingly similar to its mark as in consists of the mark, with an added hyphen and the “.life” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is attempting to pass off as Complainant to sell unrelated goods at the resolving website.
Respondent registered and uses the disputed domain name in bad faith. Specifically, Respondent is attempting to disrupt Complainant’s business and attract Internet users for commercial gain by passing off as Complainant to sell unrelated goods. Next, Respondent failed to respond to Complainant’s cease and desist letter. Finally, Respondent had actual knowledge of Complainant’s rights in the SKUNK WORKS mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SKUNK WORKS, with rights dating back to at least 2002, and uses it to market advanced aerospace products and services.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that offers products that are not related to Complainant.
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”).
The disputed domain consists of Complainant’s mark with an added hyphen and the “.life” gTLD. Adding a hyphen and a gTLD to a complainant’s mark may not sufficiently distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Therefore, the Panel finds that the <skunk-works.life> domain name is confusingly similar to Complainant’s SKUNK WORKS mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies the Respondent as “Takaya Miyoshi / Gravity GK”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers for sale products that are not related to Complainant. A confusingly similar domain name’s use does not need to be directly related to a complainant’s goods or services to not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) . See Vanderbilt Univ. v. U Inc., FA 893000 (Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Therefore, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website promotes products unrelated to Complainant’s business. Such use of a domain name can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Fossil, Inc. v. wwwfossil-watch.org c/o Hostmaster, Case No. FA 335513 (Forum Nov. 9, 2004) (finding bad faith where respondent attempted to profit from the fame of complainant’s trademark by attracting internet traffic to his website); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skunk-works.life> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 6, 2021
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