Lockheed Martin Corporation v. Above.com Domain Privacy
Claim Number: FA1109001409588
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M.J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockhedmartin.com>, registered with Above.com Pty Ltd.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 29, 2011; the National Arbitration Forum received payment on October 5, 2011.
On September 29, 2011, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <lockhedmartin.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 October 5, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@lockhedmartin.com. Also on October 5, 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 October 27, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <lockhedmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <lockhedmartin.com> domain name.
3. Respondent registered and used the <lockhedmartin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, uses its LOCKHEED MARTIN mark in connection with aerospace, aeronautics, electronic systems, information and technology services, integrated systems and solutions, and space systems. Complainant owns numerous national trademark registrations for its LOCKHEED MARTIN mark throughout the world, including with IP Australia (“IPA”) (e.g., Reg. No. 700,152 registered October 30, 1998) and the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037 registered December 10, 1996).
Respondent, Above.com Domain Privacy, registered the <lockhedmartin.com> domain name on March 3, 2009. The disputed domain name resolves to a commercial hyperlinks page that contains unrelated third-party hyperlinks.
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 for its LOCKHEED MARTIN mark with the IPA (e.g., Reg. No. 700,152 registered October 30, 1998) and the USPTO (e.g., Reg. No. 2,022,037 registered December 10, 1996), the Panel finds that Complainant has established rights in its LOCKHEED MARTIN mark for the purposes of Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)).
Respondent’s <lockhedmartin.com> domain name contains a misspelled version of Complainant’s LOCKHEED MARTIN mark, as Respondent has removed both a space and the letter “e.” The disputed domain name also contains the generic top-level domain (“gTLD”) “.com.” As the Panel finds that these changes to Complainant’s mark are insufficient to distinguish the disputed domain name, the Panel concludes that Respondent’s <lockhedmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark under Policy ¶ 4(a)(i). See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see also Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied by Complainant.
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <lockhedmartin.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 <lockhedmartin.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).
Respondent has not presented any evidence in the record that it is commonly known by the <lockhedmartin.com> domain name. Respondent neither is affiliated with Complainant nor has Complainant granted Respondent license or permission to use Complainant’s LOCKHEED MARTIN mark. The WHOIS information lists “Above.com Domain Privacy” as the registrant of the disputed domain name. As the Panel determines that the WHOIS information and the other evidence in the record do not indicate that Respondent is commonly known by the <lockhedmartin.com> domain name, the Panel finds that Respondent has failed to establish rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
According to Complainant’s screen shots of the resolving website, Respondent’s <lockhedmartin.com> domain name resolves to a website that provides pay-per-click hyperlinks relating to security guards, bidding, legal services, and the United States Air Force. While Complainant alleges that some of the hyperlinks resolve to Complainant’s competitors, the Panel determines, based on the screen shot evidence, that the hyperlinks resolve to unrelated third parties that do not compete with Complainant. Such a use remains evidence that Respondent is not making a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <lockhedmartin.com> domain name. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied by Complainant.
As Respondent registered the confusingly similar <lockhedmartin.com> domain name and uses it to host unrelated pay-per-click hyperlinks, the Panel holds that Respondent registered and uses the <lockhedmartin.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by attempting to attract Internet users seeking Complainant to its own website for profit. 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 T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockhedmartin.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: November 1, 2011
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