Lockheed Martin Corporation v. Milan Kovac
Claim Number: FA1104001384033
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M.J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Milan Kovac (“Respondent”), Slovakia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedcreditunion.com>, registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 15, 2011; the National Arbitration Forum received payment on April 18, 2011.
On April 19, 2011, Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.Com confirmed by e-mail to the National Arbitration Forum that the <lockheedcreditunion.com> domain name is registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.Com and that Respondent is the current registrant of the name. Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.Com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.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 April 25, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 2011 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@lockheedcreditunion.com. Also on April 25, 2011, 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 May 17, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lockheedcreditunion.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <lockheedcreditunion.com> domain name.
3. Respondent registered and used the <lockheedcreditunion.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant designs and markets products and services in the aerospace, aeronautics, electronic systems, information, technology, integrated systems, and space systems fields. Complainant offers these products and services under its LOCKHEED MARTIN mark. Complainant owns multiple trademark registrations for the LOCKHEED MARTIN mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037 issued December 10, 1996).
Respondent registered the <lockheedcreditunion.com> domain name on November 18, 1997. The disputed domain name resolves to a website that features hyperlinks to third-parties unrelated 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."
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.
As Complainant holds multiple trademark registrations with the USPTO for its LOCKHEED MARTIN mark (e.g., Reg. No. 2,022,037 issued December 10, 1996), the Panel finds Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also 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 Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
In the <lockheedcreditunion.com> domain name, Respondent only removes the MARTIN portion of Complainant’s mark, adds the generic terms “credit” and “union,” and adds the generic top-level domain (“gTLD”) “.com.” Based on these minor alterations, the Panel concludes that the <lockheedcreditunion.com> domain name remains confusingly similar to Complainant’s LOCHEED MARTIN mark under 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 the complainant’s ASPREY & GARRARD and MISS ASPREY marks); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <lockheedcreditunion.com> domain name. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). The Panel finds Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the <lockheedcreditunion.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant contends that Respondent is not commonly known by the <lockheedcreditunion.com> domain name. The WHOIS information lists “Milan Kovac” as the registrant of the disputed domain name, which the Panel finds is not similar to the <lockheedcreditunion.com> domain name. Respondent fails to present any evidence that would support a finding that Respondent is commonly known by the domain name. Consequently, the Panel concludes that Respondent is not commonly known by the <lockheedcreditunion.com> domain name pursuant to 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).
Respondent’s <lockheedcreditunion.com> domain name resolves to a website that contains hyperlinks unrelated to Complainant. The Panel presumes Respondent receives click-through fees from the aforementioned hyperlinks. The Panel finds Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the confusingly similar <lockheedcreditunion.com> domain name under Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <lockheedcreditunion.com> domain name to host a website containing hyperlinks to third-parties unrelated to Complainant. The Panel presumes Respondent profits from this use by receiving click-through fees each time an Internet user clicks on one of the hyperlinks. The Panel determines that Respondent chose the confusingly similar <lockheedcreditunion.com> domain name because Respondent was attempting to create confusion as to Complainant’s affiliation with the disputed domain name and resolving website. Thus, the Panel concludes that Respondent’s registration and use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online Inc. v. Shenzhen JZT Computer Software Co., D2000-0809 (WIPO Sept. 6, 2000) (finding that <gameicq.com> and <gameicq.net> are “obviously connected with services provided with the world-wide business of ICQ” and that the use of the domain names by someone with no connection to the product suggests opportunistic bad faith); see also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("While an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion.").
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedcreditunion.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: May 31, 2011
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