Lockheed Martin Corporation
v. Symons Internet Group Inc.
Claim Number: FA0710001092813
PARTIES
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan
Okin Goldsmith,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartintvnetwork.com>,
registered with Godaddy.com, Inc.
PANEL
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.
Hon. Nelson A. Diaz as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 10, 2007; the
National Arbitration Forum received a hard copy of the Complaint on October 11, 2007.
On October 11, 2007, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <lockheedmartintvnetwork.com>
domain name is registered with Godaddy.com, Inc.
and that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, 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 October 15, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 5, 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@lockheedmartintvnetwork.com
by e-mail.
A timely Response was received and determined to be complete on November 5, 2007.
A timely and complete Additional Submission was received from
Complainant on November 7, 2007.
On November 15, 2007 an Additional Submission was received from
Respondent. The Additional Submission
does not comply with Supplemental Rule 7, because it was received after the
deadline for submissions
On November 16, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Hon. Nelson A. Diaz as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant
contends that the <lockheedmartintvnetwork.com>
domain name is confusingly similar to Complainant’s LOCKHEED MARTIN
mark as the disputed domain name incorporates Complainant’s mark in its
entirety and adds the common terms “tv” and “network,” as well as the generic
top-level domain “.com.” Complainant alleges that Respondent is using
the <lockheedmartintvnetwork.com>
domain name to operate a website that displays hyperlinks to various
third-party websites, some of which are in direct competition with Complainant.
B. Respondent
Respondent contends that it does
have rights and legitimate interests in the <lockheedmartintvnetwork.com> domain name as Respondent
asserts that he is “building an online TV network” and that he “registered the
domain as a courtesy to Lockheed Martin to ensure its channel was reserved
should they choose at any future point to utilize the Respondent’s service.” Respondent contends that its offer to sell
the <lockheedmartintvnetwork.com>
domain name to Complainant for $5,775 reflects a fair fee to cover
administrative costs associated with the disputed domain name.
FINDINGS
The Panel finds that Complainant has established
rights in the LOCKHEED MARTIN mark by virtue of numerous trademark
registrations in multiple jurisdictions, including with the United States
Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 2,788,896 issued December
2, 2003) and the Canadian Intellectual Property Office (“CIPO”) (i.e. Reg. No. TMA 490,387).
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
The
Panel finds that Complainant has established rights in the LOCKHEED MARTIN mark
with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No.
2,788,896 issued December 2, 2003) and the Canadian Intellectual Property
Office (“CIPO”) (i.e. Reg. No. TMA 490,387). See Reebok Int’l Ltd. v.
The <lockheedmartintvnetwork.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark as the disputed domain name incorporates Complainant’s mark in its entirety and adds the common terms “tv” and “network,” as well as the generic top-level domain “.com.” The Panel finds that none of these modifications to Complainant’s mark sufficiently distinguishes the <lockheedmartintvnetwork.com> domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Disney Enter. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the alterations to the complainant’s DISNEY mark in the respondent’s <finestdisneyhomes.com> domain name are insufficient to differentiate the domain name from the mark pursuant to Policy ¶ 4(a)(i)); see also Am. Online, Inc. v. Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11, 2003) (finding that the respondent’s domain names, which incorporated the complainant’s entire mark and merely added the descriptive terms “traffic school,” “defensive driving,” and “driver improvement” did not add any distinctive features capable of overcoming a claim of confusing similarity); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel is aware that once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
The Panel finds that Respondent is not commonly
known by the disputed domain name under Policy ¶ 4(c)(ii). Respondent’s WHOIS information lists
Respondent as “Symons Internet Group Inc.,” and Complainant has asserted
that Respondent is not authorized to use its LOCKHEED MARTIN mark in any
way. See
Charles Jourdan Holding AG v. AAIM, D2000-0403
(WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the
respondent is not a licensee of the complainant; (2) the complainant’s prior
rights in the domain name precede the respondent’s registration; (3) the
respondent is not commonly known by the domain name in question); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16,
2001) (interpreting Policy ¶ 4(c)(ii) "to require
a showing that one has been commonly known by the domain name prior to
registration of the domain name to prevail").
The Panel finds that the operation of this website is for Respondent’s own commercial benefit through the accrual of click-through fees. The Panel so finds, that Respondent is not making 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). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website).
Respondent has also
offered to sell the <lockheedmartintvnetwork.com> domain
name to Complainant for $5,775 (according to the Response) or to “reserve” the
disputed domain name for Complainant at a cost of $25,000. The Panel finds that such conduct purporting
to sell the disputed domain name to Complainant indicates a lack of rights and
legitimate interests on Respondent’s behalf under Policy ¶ 4(a)(ii). See Mothers
Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum
May 27, 2003) (holding that under the circumstances, the respondent’s apparent
willingness to dispose of its rights in the disputed domain name
suggested that it lacked rights or legitimate interests in the domain name); see also Am. Nat’l Red Cross v. Domains,
FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and
legitimate interests in the domain name is further evidenced by Respondent’s
attempt to sell its domain name registration to Complainant, the rightful
holder of the RED CROSS mark.”).
The Panel finds that Respondent is profiting from its use of the <lockheedmartintvnetwork.com> domain name through the earning of click-through fees. The Panel also finds that the disputed domain name is capable of creating a likelihood of confusion as to Complainant’s source, sponsorship, affiliation or endorsement of the disputed domain name and resulting website, the Panel finds evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
The Panel finds that Respondent’s offer to sell the <lockheedmartintvnetwork.com> domain name to Complainant, for an amount is in excess of Respondent’s out-of-pocket costs, indicates bad faith registration and use under Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)); see also Campmor, Inc. v. GearPro.com, FA 197972 (Nat. Arb. Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”).
The Panel also finds that the
evidence, including the statements by Respondent in its Response, indicate that
Respondent had actual knowledge of Complainant’s mark at the time of the
registration of the <lockheedmartintvnetwork.com> domain
name. This is a bad faith registration
and use under Policy ¶ 4(a)(iii). See Pfizer, Inc. v. Suger,
D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the
complainant’s mark and the content advertised on the respondent’s website was
obvious, the respondent “must have known about the Complainant’s mark when it
registered the subject domain name”); see also Entrepreneur Media,
Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("Where an alleged
infringer chooses a mark he knows to be similar to another, one can infer an
intent to confuse.").
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedmartintvnetwork.com> domain
name be TRANSFERRED from Respondent to Complainant.
Hon. Nelson A. Diaz, Panelist
Dated: November 29, 2007
Click Here to return
to the main Domain Decisions Page.
Click Here to return
to our Home Page
National
Arbitration Forum