Lockheed Martin Corporation v. Domain Park Limited
Claim Number: FA0708001059748
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan
Okin Goldsmith, of Duane Morris LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <22raptor.com>, registered with Moniker Online Services, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 9, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 10, 2007.
On August 10, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <22raptor.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 4, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@22raptor.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant manufactures, among other things, combat airplanes.
Complainant began using the F/A-22 RAPTOR mark and related marks in connection with its popular F-22 Raptor fighter plane in 1997.
Complainant’s F-22 Raptor aircraft has been featured in numerous books, articles, and television programs, and recently had a role in the motion picture “Transformers.”
Besides using the F/A-22 RAPTOR mark to promote its aircraft, Complainant also uses the mark to market scale models of the F-22 Raptor and various toys and other goods.
Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the F/A-22 RAPTOR mark (Reg. No. 2,978,582, issued July 26, 2005).
Complainant also owns various domain name registrations incorporating the F/A-22 RAPTOR mark.
Complainant has not licensed or authorized Respondent to use the F/A-22 RAPTOR mark for any purpose.
Respondent registered the <22raptor.com> domain name on September 8, 2006.
Respondent’s disputed domain name resolves to a website indicating that the domain name is for sale and displaying links to various third-party websites, some of which offer products that compete with the business of Complainant.
After receiving a cease-and-desist letter from Complainant, Respondent offered to sell the disputed domain name to Complainant for an amount greater than its out-of-pocket costs.
Respondent’s <22raptor.com> domain name is confusingly similar to Complainant’s F/A-22 RAPTOR mark.
Respondent does not have any rights or legitimate interests in the <22raptor.com> domain name.
Respondent registered and used the <22raptor.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was 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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant asserts its rights in the F/A-22 RAPTOR mark
through its registration of the mark with the USPTO. This is sufficient to establish Complainant’s
rights in the mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003):
“Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.” See also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003): “[O]nce the
USPTO has made a determination that a mark is registrable, by so issuing a
registration, as indeed was the case here, an ICANN panel is not empowered to
nor should it disturb that determination.”
Respondent’s <22raptor.com> domain name is confusingly similar to Complainant’s F/A-22 RAPTOR mark, inasmuch as it merely omits “F/A-“ from the beginning of the mark, otherwise preserving the general impression of the mark. The omission of a portion of a mark does not negate confusing similarity between a mark and a competing domain name. Moreover, the addition of the generic top-level domain “.com” to a mark in creating a domain name is irrelevant, because a top-level domain is required of all domain names. Therefore, we conclude that the <22raptor.com> domain name is confusingly similar to Complainant’s F/A-22 RAPTOR mark pursuant to Policy ¶ 4(a)(i). See Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to a complainant’s ASPREY & GARRARD and MISS ASPREY marks); see also Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such “generic” typos do not change a respondent’s infringement on a core trademark held by a complainant); further see Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003):
It
has been established that the addition of a generic top-level domain is
irrelevant when considering whether a domain name is identical or confusingly
similar under the Policy.
See also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000): "[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."
The Panel thus finds that Policy ¶ 4(a)(i)
has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights and legitimate interests in the <22raptor.com> domain name. Once Complainant has made out a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, the assertion by a complainant that a respondent has no right or legitimate interest is sufficient to shift the burden of proof to that respondent to demonstrate that such a right or legitimate interest does exist).
From our review of the record before us, we conclude that Complainant has established a prima facie case under the Policy.
Respondent’s failure to answer the Complaint allows us to presume that Respondent lacks rights and legitimate interests in the <22raptor.com> domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004):
Respondent’s
failure to respond to the Complaint functions as an implicit admission that
[Respondent] lacks rights and legitimate interests in the disputed domain
name. It also allows the Panel to accept
all reasonable allegations set forth…as true.
See also Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003): “It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on [sic] the domain name.”
However, the Panel will nonetheless examine the record to determine if there is any basis for concluding that Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
In this connection, we first observe that Complainant
alleges that Respondent is not commonly known by the <22raptor.com> domain name, which suggests that Respondent
lacks rights and legitimate interests in the disputed domain name under Policy
¶ 4(c)(ii). We accept this allegation,
as there is nothing in the record, including Respondent’s WHOIS information, to
indicate that Respondent is commonly known by the <22raptor.com> domain name.
In addition, Respondent does not deny Complainant’s allegation that Complainant
has not licensed or authorized Respondent to use the F/A-22 RAPTOR mark for any
purpose. Thus, we conclude that
Respondent lacks rights and legitimate interests in the <22raptor.com> domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
a respondent was not commonly known by the mark there in question and never
applied for a license or permission from a complainant to use the trademarked
name); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
In addition, it is undisputed that Respondent’s <22raptor.com> domain name resolves to a website featuring links to third-party websites which offer goods competing the business of Complainant. We presume that Respondent accrues click-through fees when Internet users click on these links. This does not constitute either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), which further indicates Respondent’s lack of rights and legitimate interests in the <22raptor.com> domain name. See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where a respondent used a complainant’s mark without authorization to attract Internet users to its website, which offered the products of that complainant’s competitors); see also Nat’l Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that using contested domain names without a complainant’s permission to sell the goods of others is not a bona fide use).
Furthermore, we note that Respondent does not deny the allegation that it has offered to sell the <22raptor.com> domain name to Complainant for an amount greater than Respondent’s out-of-pocket costs, and that it makes a general offer for sale of the domain name on its website. This also indicates that Respondent lacks rights and legitimate interests in the disputed domain name. See Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that a respondent’s apparent willingness to dispose of its rights in a disputed domain name suggested that it lacked rights or legitimate interests in the domain name); see also Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
We have already presumed that Respondent accrues
click-through fees when Internet users click on the links contained on the
website that resolves from the <22raptor.com>
domain name. Therefore, Respondent
is benefiting commercially from the likelihood of confusion as to Complainant’s
affiliation with the disputed domain name.
This is evidence that Respondent registered and is using the <22raptor.com> domain name in bad
faith pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v.
Cook, FA 208629 (Nat. Arb. Forum Dec. 22,
2003): “Registration and use of a domain name that incorporates another's mark
with the intent to deceive Internet users in regard to the source or
affiliation of the domain name is evidence of bad faith.” See also Associated
Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov.
19, 2003): “Respondent's prior use of the <mailonsunday.com> domain name
is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name
provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”
Under Policy ¶ 4(b)(i),
Respondent’s bad faith registration and use of the disputed domain name is further evidenced by its general offer of the
domain for sale, and its specific offer to sell the disputed domain name to
Complainant for an amount greater than its out-of-pocket costs. See Bank of Am.
Corp. v. Nw. Free Cmty. Access,
FA 180704 (Nat. Arb. Forum
Sept. 30, 2003):
Respondent's general offer of the disputed
domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).
See also Little Six, Inc. v.
Domain For
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <22raptor.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 18, 2007
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