Lockheed Martin Corporation v. Ndolin Gendeng
Claim Number: FA1010001354945
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M.J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Ndolin Gendeng (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <itskunkworks.org>, registered with Name.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 27, 2010; the National Arbitration Forum received payment on November 1, 2010.
On October 28, 2010, Name.com, LLC confirmed by e-mail to the National Arbitration Forum that the <itskunkworks.org> domain name is registered with Name.com, LLC and that Respondent is the current registrant of the name. Name.com, LLC has verified that Respondent is bound by the Name.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 November 4, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 2010 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@itskunkworks.org. Also on November 4, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
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" 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <itskunkworks.org> domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
2. Respondent does not have any rights or legitimate interests in the <itskunkworks.org> domain name.
3. Respondent registered and used the <itskunkworks.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, designs, builds and tests commercial and military aircraft and related equipment. Complainant uses its SKUNK WORKS mark in connection with the research and development of aircraft and has registered the mark with the United States Patent and Trademark Organization (“USPTO”) (e.g., Reg. No. 2,621,790 issued September 17, 2002).
Respondent, Ndolin Gendeng, registered the <itskunkworks.org> disputed domain name on October 15, 2009. The disputed domain name resolves to a website containing hyperlinks that promote other commercial websites.
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 the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the 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:
(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.
Complainant has provided evidence of its registration of the SKUNK WORKS mark with the USPTO (e.g., Reg. No. 2,621,790 issued September 17, 2002). The Panel finds that such evidence establishes rights in the mark and satisfies the requirements outlined in Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). The Panel concludes, pursuant to Policy ¶ 4(a)(i), that Complainant has established rights in its SKUNK WORKS mark based on its registration of the mark with the USPTO.
Respondent’s <itskunkworks.org> domain name is confusingly similar to Complainant’s SKUNK WORKS mark. Respondent incorporates Complainant’s entire mark and simply adds the letters “i” and “t” which the Panel assumes is a direct reference to the term “information technology.” The addition of letters to a registered mark does not result in a distinct domain name. Respondent also removes the space between the terms in its SKUNK WORKS mark, irrelevant to the determination of confusing similarity between the disputed domain name and Complainant’s mark. Finally, Respondent’s adds the generic top-level domain (“gTLD”) “.org”, also insufficient to remove the confusing similarity to Complainant’s SKUNK WORKS mark. See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”); see also Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel concludes that Respondent’s <itskunkworks.org> disputed domain name is confusingly similar to Complainant’s SKUNK WORKS mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been established.
Under Policy ¶ 4(a)(ii), the burden rests on Complainant to prove that Respondent does not have rights or legitimate interests in the disputed domain name. Once a prima facie showing is made by Complainant in support of its allegations, the burden then shifts to Respondent to show it has rights or legitimate interests in the disputed domain name). Based on the information set forth in the Complaint, the Panel finds that Complainant has made a prima facie showing. Because Respondent failed to make a timely response, the Panel may assume that Respondent lacks rights or legitimate interests in the <itskunkworks.org> domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also 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.”). However, the Panel chooses to consider the evidence to determine whether Respondent owns any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <itskunkworks.org> domain name and that Respondent is not authorized to use the SKUNK WORKS mark. The Panel can find no evidence in the record supporting the notion that Respondent is commonly known by the disputed domain name. The WHOIS database lists the registrant of the disputed domain name as Ndolin Gendeng, which Complainant argues is not similar to the disputed domain name. The Panel finds that Respondent is not commonly known by the <itskunkworks.org> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant alleges that Respondent uses the disputed domain name to redirect Internet users to Respondent’s domain name and resolving website, which consists of hyperlinks to commercial websites. The Panel presumes that Respondent receives click-through fees in return for redirecting Internet traffic to third-party websites. The Panel finds that Respondent’s use of a confusingly similar domain name to operate a website featuring links to commercial websites is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
The Panel finds Policy ¶ 4(a)(ii) has been established.
The Panel finds that Respondent is using the disputed domain name to maintain a commercial directory with links to content that is unrelated to Complainant’s aircraft design and manufacturing business. Respondent is using the SKUNK WORKS mark to redirect Internet users to Respondent’s website. Consequently, Internet users are confused as to Complainant’s sponsorship of, and affiliation with, the disputed domain name’s resolving website and posted hyperlinks. Respondent benefits from this confusion through the receipt of click-through fees. Therefore, the Panel concludes that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel finds Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <itskunkworks.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 7, 2010
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