National Arbitration Forum

 

DECISION

 

Lockheed Martin Corporation v. Extraordinary Things LLC

Claim Number: FA0712001117826

 

PARTIES

Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan Okin Goldsmith, 744 Broad Street, Suite 1200, Newark, NJ 07102.  Respondent is Extraordinary Things LLC (“Respondent”), 2232 S. Main St. #423, Ann Arbor, MI 48103.

 

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.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.

 

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on December 5, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 6, 2007.

 

On December 6, 2007, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names are registered with GoDaddy.com, Inc. and that the Respondent is the current registrant of the names.  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 December 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 27, 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@lockheedventure.com, postmaster@lockheedventures.com, and postmaster@lockheedventurecapital.com by e-mail.

 

A timely Response was received and determined to be complete on December 26, 2007.

 

A timely Additional Submission was received from Complainant on December 31, 2007 in accordance with the Forum’s Supplemental Rule 7.

 

On January 9, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

 

The <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names are “identical or confusingly similar” to the LOCKHEED marks and Lockheed name in which Lockheed has rights.  All three domain names incorporate Lockheed’s registered LOCKHEED mark and the well-known Lockheed name in their entirety.

 

The LOCKHEED marks represent the reputation and goodwill of one of the world’s leading companies.  This year, Lockheed is number 57 on the Fortune 500 list of U.S. companies, and number 160 on the Fortune Global 500 list.  The LOCKHEED marks are used all over the world in connection with the company’s famous aeronautics, electronics systems, information and technology services, integrated systems and solutions and space systems, as well as a wide variety of related goods and services. 

 

Thus, the LOCKHEED marks have achieved status as well-known marks under the definition at Part 1, Art. 2 of the WIPO Paris Union Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks. 

 

As a global corporation, Lockheed has more than 300 mutually beneficial government and industry joint ventures, partnerships and alliances in more than 50 countries.  Some of these Lockheed ventures are set up to provide financing to others.  These alliances create jobs, advance technology and reinforce Lockheed’s reputation and good will as a worldwide venture partner of choice.

 

Lockheed is internationally known for the goods and services it provides under its famed LOCKHEED marks, including those goods and services that are created by or offered through its many business ventures.  Persons searching the Internet for services and products provided by Lockheed or its venture partners, or information about Lockheed’s ventures, are likely to be confused when they find the domain names <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com>. 

 

Respondent, Extraordinary Things, LLC, is not commonly known by the domain names or a name connected with the domain names.  According to the Whois records, these domain names are owned by Extraordinary Things LLC. 

 

Respondent does not have trademark rights in the names “Lockheed Venture,” “Lockheed Ventures,” or Lockheed Venture Capital.”   Lockheed has exclusive rights to the use of the registered LOCKHEED mark and the other LOCKHEED marks in many regions around the world.  Respondent is not licensed or otherwise authorized to use the disputed domain names.  Respondent has no connection or affiliation with Lockheed and has not received any license or consent, express or implied, to use the LOCKHEED marks in its domain names or in any other manner. 

 

In e-mail correspondence with Respondent, Michael Psarouthakis, admitted that the Respondent’s name and his own name are not “Lockheed” or anything similar to “Lockheed” but that Mr. Psarouthakis’ own last name is not practicable for a business because it is difficult to pronounce and spell.  Mr. Psarouthakis’ stated reason for registering the Lockheed variant domain names is because he “expects to launch” his own venture capital firm “in the next two or three years.”  He claims that he “lock[ed] up a few good names now rather than wait until [he] actually start[s] the firm.”  Respondent then admits there have been no bona fide preparations to use “Lockheed” in connection with any legitimate offering of goods or services. 

 

The domain names are currently being offered for sale by the Respondent.  Respondent offered to sell the domain names to the Complainant for $2,500 each and is also currently accepting offers from third parties for the purchase of the domain names on each of the names’ related sites. 

 

Respondent has not demonstrated preparations to make legitimate use of the domain names.  Further, Respondent’s offering to sell the domain names to Complainant or to the public at large clearly shows that it lacks any rights or legitimate interests in the domain names. 

 

Respondent has not made any legitimate, non-commercial use of the disputed domain names, and instead is using it as a parked page with pay-per-click links to generate revenue, all the while offering the domain names for sale.

 

Respondent registered the domain names at issue in bad faith.  Respondent knew of, and sought to capitalize on, the fame and value of the LOCKHEED marks and Lockheed name.  Respondent is charged with constructive knowledge of Lockheed’s trademark rights in the LOCKHEED marks by virtue of Lockheed’s many trademark registrations and pending trademark applications.

 

Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or of a service on Respondent’s web site. 

 

Respondent’s websites at the domain names <lockheedventure.com>, <lockheedventures.com>, and<lockheedventurecapital.com> resolve to “Sedo” parking pages that contain references and pay-per-click links to other “venture” or “venture capital” sites.  In addition to the links, the parking page at each of the domain name sites states, “This domain…may be for sale by its owner” and invites the visitor to make an offer to purchase the domain name.

 

On November 12, 2007, through its representative, Lockheed sent a letter to the Respondent, notifying it of Lockheed’s rights in the LOCKHEED marks and requesting transfer of the <lockheedventure.com> and <lockheedventures.com> domain names to Lockheed.  On November 26, 2007, Respondent stated that it had “no interest in transferring [the domain names] back to Lockheed Martin for the price…paid to register the domains.”  However, Respondent stated it would be willing to transfer the domain names, “for $2,500 per domain.”  

 

B. Respondent

 

Respondent does not dispute Complainant’s trademark rights in the LOCKHEED marks; however, Respondent contends that the Lockheed marks do not refer to the venture capital, private equity, investment banking or financial service sectors.  Respondent contends that its addition of the terms “venture,” “ventures,” and “capital” sufficiently distinguish the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names from Complainant’s LOCKHEED mark.  

 

Respondent argues that it intends to use the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names in the future in connection with a venture capital firm that it intends to launch in two or three years, and that the disputed domain names are currently parked merely in order to recover Respondent’s registration costs.  Respondent contends that Complainant is not associated with financial services in any way and Respondent does not intend to use the disputed domain names to compete with Complainant’s business.

 

Respondent admits that it did offer to sell the disputed domain names to Complainant for $2,500 each, but contends that this does not indicate bad faith registration and use under Policy ¶ 4(b)(i).  Respondent asserts that Complainant initiated the dialogue about purchasing the disputed domain names, and that Respondent only chose the $2,500 price after consulting an online domain name magazine.

 

Respondent expects to launch a venture capital firm in the next two or three years. Given the accelerating rate of “.com” domain registrations the Respondent felt it would be wise to plan ahead and lock up a few good names now rather than wait until the actual formation of the firm.  Respondent has a potential partner and friend whose last name happens to be Lockheed. As a result, the Respondent explored domain name variations of the words Lockheed, Venture(s) and Capital as they would be reasonable names if one of the partners had Lockheed as a last name.  

Respondent alleges that Complainant has no rights in the mark because third parties use the term “Lockheed.” 

Respondent contends that by filing this Complaint, Complainant has engaged in reverse domain name hijacking.

 

C. Complainant’s Additional Submission

 

Respondent does not deny that any of the domain names are identical or confusingly similar to Complainant’s registered and famous LOCKHEED marks (as that term is defined in the Complaint). 

 

Respondent also does not deny that Complainant actually engages in joint ventures with others, or that Complainant engages in venture capital endeavors. 

 

Respondent instead alleges that because Complainant has no U.S. trademark registration that specifically refers to financial services and venture capital, it lacks any rights in the mark for these purposes.  Under U.S. law, however, Complainant is not required to register its marks for absolutely everything it does under the LOCKHEED marks in order to have rights in the marks. 

 

Complainant has registered its marks for a wide variety of goods and services, some of which it offers in joint ventures with others.  Furthermore, Complainant has common law rights in the mark with respect to venture capital services. 

 

Respondent further alleges that Complainant has no rights in the mark because third parties use the term “Lockheed.”  Indeed, there are a couple of entities using “Lockheed” with Complainant’s knowledge and consent, or otherwise in very limited ways. Their existence does not invalidate Complainant’s claims to rights in its famous trademark, particularly within a commercial area in which it actually uses its marks, namely, for joint ventures and venture capital investments.   Even if others do trade under “Lockheed,” however, that has no bearing on the Respondent’s registration or use of the three domain names at issue here. 

 

Respondent also alleges that because the domain names it acquired were available, Complainant has no legitimate interest in them.  It is simply impossible, however, for any trademark owner to register in advance every possible combination of its marks with generic terms, and it is not required to do so.  

 

Respondent admits that it intends to go into a commercial enterprise which offers venture capital services.  Complainant’s mark is not a generic term and its rights in the LOCKHEED marks are very well established.  Complainant itself engages in joint ventures and provides venture capital services to others. 

 

Complainant has substantial rights in the LOCKHEED marks, including the exclusive rights to the mark LOCKHEED as used for various business ventures and venture capital.  The domain names <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> are confusingly similar to Complainant’s LOCKHEED marks. 

 

Respondent is Extraordinary Things LLC, not the individual Michael Psarouthakis. 

 

Respondent, Extraordinary Things LLC, claims that it has rights and legitimate interest in the disputed domain names because it has an intention to use these domain names in a business which is not currently in operation.  Respondent purchased the domain names to “lock up a few good names now rather than wait until the actually [sic] formation of the firm.”  Response Section3(b).  Thus, Respondent has engaged in passive holding of the domain names.  Respondent admits to having offered third party links to offset annual registration costs of these sites. 

 

Respondent’s registration of the domain names and its use of the terms for revenue generation on a pay-per-click basis is not a bona fide offering of services that would constitute rights or legitimate interest in the domain name. 

 

Respondent has not used any of the domain names for a bona fide offering of goods or services. Respondent is not known by the domain names. Respondent has not made noncommercial or fair use of the domain names.  Respondent has not shown it has any rights or any legitimate interest in the domain names. 

 

Respondent responded to Complainant’s initial letter with a clear offer to sell the domain names, later offering to sell them for $2,500 each, and allegedly basing its offer on an article about the domain name aftermarket. 

 

There is ample evidence that Respondent knew of the interests of Complainant in its famous marks.  It generated revenue through paid links.  The simplest of searches would have revealed the rights of Complainant.  Registration of three such domain names is evidence of registration in bad faith. 

 

These are circumstances indicating that Respondent has “intentionally attempted to attract, for commercial gain, Internet users to [its] web site…by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site… or of a product or service on your web site.”  ICANN Policy ¶ 4(b)(iv). 

 

Respondent’s allegation that Complainant has engaged in reverse domain name hijacking is unwarranted and groundless, and is simply further evidence that Respondent is acting in bad faith. Complainant’s rights and legitimate interests in its trademark and its own joint venture and venture capital enterprises are amply proven.  Complainant has good cause to bring this action. 

 

FINDINGS

 

Complainant, Lockheed Martin Corporation, is the successor to Lockheed Corp. and its predecessors, which manufactured goods and provided services under the LOCKHEED mark from about 1920 until 1995 when Lockheed Corp. and Martin Marietta Corp. merged to form Lockheed Martin Corporation.  Today, the merged entity is commonly known to the public as “Lockheed.”  Lockheed has registered its LOCKHEED marks with the United States Patent and Trademark Office (“USPTO”) and numerous other jurisdictions.  It also owns numerous domain names that include the LOCKHEED marks or variants of the LOCKHEED marks. 

 

The LOCKHEED marks represent the reputation and goodwill of one of the world’s leading companies.  This year, Lockheed is number 57 on the Fortune 500 list of U.S. companies, and number 160 on the Fortune Global 500 list.  The LOCKHEED marks are used all over the world in connection with the company’s aeronautics, electronics systems, information and technology services, integrated systems and solutions and space systems, as well as a wide variety of related goods and services. 

 

The Whois record for the <lockheedventure.com> and <lockheedventures.com> domain names show that they were both registered to the Respondent on August 8, 2007.  The Whois record for the <lockheedventurecapital.com> domain name shows that it was registered on November 12, 2007. 

 

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.

 

Identical and/or Confusingly Similar

 

Complainant has rights in the LOCKHEED mark and related marks through its registration of the mark with the United States Patent and Trademark Office (Reg. No. 2,627,156 issued October 1, 2002), and with several countries throughout the world.  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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").

 

Respondent’s <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names are confusingly similar to Complainant’s LOCKHEED mark, as the disputed domain names each include the entire LOCKHEED mark and merely add the generic terms “venture,” “ventures,” and “capital.”  These terms describe an aspect of Complainant’s business in which it provides venture capital to entrepreneurs, and thus do not sufficiently distinguish the disputed domain names from the LOCKHEED mark.  The disputed domain names also contain the generic top-level domain “.com,” which is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.  Therefore, the Panel finds that the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names are confusingly similar to Complainant’s LOCKHEED mark pursuant to Policy ¶ 4(a)(i).  See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name  <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense); 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 . . . .").

 

Rights or Legitimate Interests

 

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

Respondent is not commonly known by the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names, since Respondent’s WHOIS information, along with other evidence in the records, indicates that Respondent is “Extraordinary Things LLC,” and not the individual “Michael Psarouthakis,” as Respondent contends.  Moreover, Respondent is not authorized or permitted to use Complainant’s LOCKHEED mark.  The Panel finds that Respondent is not commonly known by the disputed domain names and thus lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii).  See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”).

 

Respondent’s <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names all resolve to parked websites featuring links to third-party venture capital and financial websites that offer services in competition with Complainant, and Respondent accrues click-through fees from these links.  The Panel finds that such use 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).  See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).

 

In addition, Respondent offered to sell the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names to Complainant for $2,500, an amount greater than its out-of-pocket costs.  Respondent’s willingness to sell the disputed domain names also indicates that Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use); see also 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).

 

 

 

Registration and Use in Bad Faith

 

Respondent registered and is using the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names in bad faith pursuant to Policy ¶ 4(a)(iii).  Respondent is using the disputed domain names to display links to third-party websites offering services in competition with Complainant and such use constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use under Policy ¶ 4(b)(iii).  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

 

Also, Respondent is capitalizing on the likelihood that Internet users, seeking Complainant’s business, will be confused as to the source of the <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names and Complainant’s affiliation with the corresponding websites.  This is further evidence of Respondent’s bad faith registration and use of the disputed domain names 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 Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark).

 

Complainant is a very well-known corporation and, as such, Respondent knew of Complainant’s rights in the LOCKHEED mark.  This actual knowledge also indicates Respondent’s bad faith registration and use of the disputed domain names under Policy ¶ 4(a)(iii).  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that the respondent had actual and constructive knowledge of the complainant’s EXXON mark given the worldwide prominence of the mark and thus the respondent registered the domain name in bad faith).

 

Reverse Domain Name Hijacking

 

Respondent contends that Complainant has engaged in reverse domain name hijacking.  Respondent’s allegation is without merit.

 

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 <lockheedventure.com>, <lockheedventures.com>, and <lockheedventurecapital.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 23, 2008

 

 

 

 

 

 

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