national arbitration forum

 

DECISION

 

Lockheed Martin Corporation v. Tupelo aeronautics, Inc.

Claim Number: FA1209001463020

 

PARTIES

Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California,  USA.  Respondent is Tupelo aeronautics, Inc. (“Respondent”), Mississippi, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lockheedharpoons.com>, <biglockheeds.com>, and <savingoldlockheeds.com>, registered with GoDaddy.com, LLC.

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on September 17, 2012; the National Arbitration Forum received payment on September 25, 2012.

 

On September 18, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <lockheedharpoons.com>, <biglockheeds.com>, and <savingoldlockheeds.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 September 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 2012 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@lockheedharpoons.com, postmaster@biglockheeds.com, and postmaster@savingoldlockheeds.com.  Also on September 25, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 22, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

1.    Respondent registered the disputed domain names on July 6, 2012.

2.    Complainant owns numerous trademark registrations around the world for the LOCKHEED and LOCKHEED MARTIN marks, including registrations with the Canadian Intellectual Property Office (“CIPO”) and the United States Patent and Trademark Office (“USPTO”), among others:

Mark                                 Reg. No.                    Registration Date

CIPO

LOCKHEED                    14,861                        November 1, 1939;

LOCKHEED                    174,069                      February 5, 1971;

LOCKHEED MARTIN   490,387                      February 23, 1998; &

LOCKHEED MARTIN   TMA726,521             October 21, 2008.

 

USPTO

LOCKHEED MARTIN   2,022,037                  December 10, 1996;

LOCKHEED MARTIN   2,022,038                  December 10, 1996;

LOCKHEED MARTIN   2,289,018                  October 26, 1999;

LOCKHEED MARTIN   2,289,019                  October 26, 1999;

LOCKHEED                    2,627,156                  October 1, 2002; &

LOCKHEED MARTIN   2,827,871                  March 30, 2004.

3.    Complainant has used the LOCKHEED and LOCKHEED MARTIN marks in connection with aerospace, aeronautics and aircraft, electronic systems, information and technology services, integrated systems and solutions, and space systems.

4.    The disputed domain names are confusingly similar to Complainant’s LOCKHEED mark as they all contain the LOCKHEED mark (or the plural of the mark, “lockheeds”) along with one or more of the following terms that describe Complainant’s product: “harpoons,” “big,” “saving,” and/or “old.”

5.    The disputed domain name are likely to mislead, deceive and cause mistake as to the source, sponsorship, affiliation or endorsement of the domain names or the products and services promoted on the resolving websites, as well as attract potential customers.

6.    Complainant’s marks are not descriptive words in which Respondent might have an interest.

7.    Respondent is not affiliated with and has not been licensed or permitted to use Complainant’s mark.

8.    Respondent uses the disputed domain names to host websites that promote other commercial websites by advertising click-through links.

9.    Respondent’s use of the disputed domain name to host click-through links that presumably generate revenue for Respondent is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.

10. Respondent is not commonly known by the disputed domain names, either as a business, individual or other organization.

11. Respondent’s use of the disputed domain names to redirect Internet users to commercial websites and other websites providing various sponsored click-through links demonstrates bad faith registration and use as Respondent intends to attract Internet uses to the resolving websites for commercial gain by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, or affiliation of the resolving websites.

12. As Respondent told Complainant that Complainant would not be willing to purchase the disputed domain names for the price that Respondent would demand, Respondent intends to sell the disputed domain names to Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs, which is further evidence of bad faith registration and use under Policy ¶ 4(b)(i).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the LOCKHEED and LOCKHEED MARTIN marks. Respondent’s domain names are confusingly similar to Complainant’s marks.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lockheedharpoons.com>, <biglockheeds.com>, and <savingoldlockheeds.com> domain names, and that Respondent registered and uses the domain names in bad faith.

 

DISCUSSION

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."

 

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.

 

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.”).

 

Identical and/or Confusingly Similar

Complainant argues that it owns numerous trademark registrations for the LOCKHEED and LOCKHEED MARTIN marks around the world, including with CIPO and the USPTO.  These numerous trademark registrations conclusively demonstrate that Complainant possesses rights in the LOCKHEED and LOCKHEED MARTIN marks for the purposes of Policy ¶ 4(a)(i). See Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration of the ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks with the USPTO satisfied the requirement of demonstrating rights in the mark under consideration pursuant to Policy ¶ 4(a)(i)).

 

Complainant alleges that Respondent’s <lockheedharpoons.com>, <biglockheeds.com>, and <savingoldlockheeds.com> domain names are confusingly similar to Complainant’s LOCKHEED mark as they all contain the LOCKHEED mark (or the plural, “lockheeds”) along with one or more of the following terms that describe Complainant’s product: “harpoons,” “big,” “saving,” and/or “old.” The disputed domain names also attach the gTLD “.com” to the mark. Adding the letter “s” to Complainant’s mark and combining the mark with a descriptive term and a gTLD do not differentiate the disputed domain names from the mark. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark). The Panel therefore concludes that Respondent’s disputed domain names are confusingly similar to Complainant’s LOCKHEED mark pursuant to Policy ¶ 4(a)(i). 

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.

 

Complainant contends that Respondent is not commonly known by the disputed domain names, either as a business, an individual or other organization. Complainant asserts that Respondent is not affiliated with Complainant and has not been licensed or permitted to use Complainant’s mark. The WHOIS information for the disputed domain names identifies the registrant as “Tupelo aeronautics, Inc.,” which reflects no association with the disputed domain names. Based on these allegations and the evidence in the record, the Panel determines that Respondent is not commonly known by the disputed domain name and thus lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).

 

Complainant alleges that Respondent’s disputed domain names promote other commercial websites by advertising click-through links on the resolving websites. Complainant argues that these links presumably generate revenue for Respondent. Complainant states that Respondent registered the disputed domain names in order to trade off the reputation and goodwill associated with Complainant’s mark and divert Internet traffic from Complainant’s website to Respondent’s for commercial gain. Hosting pay-per-click links under such circumstances is not consistent with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and 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). The Panel holds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and 4(c)(iii).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that during a phone call with Respondent, Respondent indicated that it would be willing to sell the disputed domain names to Complainant but that Complainant would not be willing to pay the price that Respondent would demand. Complainant contends that this conversation indicates that Respondent  intends to sell the disputed domain names to Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs, which is evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(i). The Panel agrees. See Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name).

 

Complainant alleges that Respondent is using the disputed domain names to redirect Internet users to commercial websites and websites hosting various sponsored click-through links to third-party websites. Complainant argues that these links are pay-per-click links that presumably generate revenue for Respondent. Complainant asserts that Respondent registered these disputed domain names with the intent to attract Internet users seeking Complainant to the resolving websites for Respondent’s own commercial gain by creating a likelihood of confusion with Complainant as to the source, sponsorship or affiliation of the resolving websites. These activities indicate bad faith registration and use according 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). 

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

 

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 <lockheedharpoons.com>, <biglockheeds.com>, and <savingoldlockheeds.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  October 30, 2012

 

 

 

 

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