Lockheed Martin Corporation v. Lockheed Technology / chris thanakrit
Claim Number: FA1210001468861
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Lockheed Technology / chris thanakrit (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedtechnology.com>, registered with eNom, Inc.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 24, 2012; the National Arbitration Forum received payment on October 24, 2012.
On October 25, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <lockheedtechnology.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 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@lockheedtechnology.com. Also on October 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 November 29, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LOCKHEED mark. Respondent’s domain name is confusingly similar to Complainant’s mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lockheedtechnology.com> domain name, and that Respondent registered and uses the domain name in bad faith.
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.”).
Complainant, Lockheed Martin Corporation, sells goods and services related to aerospace, aeronautics and aircraft, electronic systems, information and technology services, integrated systems and solutions, and space systems. Complainant owns several trademark registrations with the USPTO for the LOCKHEED mark (Reg. No. 2,627,156, registered October 1, 2002) and LOCKHEED MARTIN marks (e.g., Reg. No. 2,022,037, registered December 10, 1996). Complainant also owns several trademark registrations in various countries throughout the world, including in Thailand (Reg. No. BOR7762). See Complainant’s Exhibit D. Therefore, the Panel finds that Complainant’s trademarks with the USPTO and various other trademark offices are sufficient to demonstrate rights in the LOCKHEED mark under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark Office (‘USPTO’)”).
Complainant argues that Respondent’s <lockheedtechnology.com> domain name is confusingly similar to Complainant’s LOCKHEED marks as it fully incorporates Complainant’s mark and merely adds the generic term “technology.” The addition of the generic term “technology” does not adequately distinguish Respondent’s disputed domain name from Complainant’s mark. See Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark).
Complainant further contends that the addition of the gTLD “.com” also does not sufficiently distinguish Complainant’s LOCKHEED mark. The Panel finds that the use of a gTLD does not eliminate the confusing similarity between Respondent’s disputed domain name and Complainant’s LOCKHEED mark. See Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Nat. Arb. Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”). Therefore, the Panel concludes that Respondent’s disputed domain name is confusingly similar to Complainant’s LOCKHEED mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
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 argues Respondent is not commonly known by the disputed domain name, although the WHOIS information identifies “LOCKHEED TECHNOLOGY / chris thanakrit” as the registrant of the disputed domain name. Complainant contends that Respondent is not owned by, affiliated with, or endorsed by Complainant. Complainant contends that Respondent is not using the domain name to provide any goods or services under the name “Lockheed Technology” and Complainant has not been able to locate any additional evidence showing that Respondent is commonly known by the domain name. The Panel finds that Respondent is not commonly known by the disputed domain name based on its failure to provide evidence indicating that it is commonly known by the disputed domain name. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”). Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial fair use under Policy ¶ 4(c)(iii). Complainant contends that Respondent’s domain name directs Internet users to a webpage that states “Website under Re-construction.” Additionally, Complainant contends that Respondent has failed to make any developments or “demonstrable preparations” to use the domain name. The Panel finds that Respondent’s use of the domain name constitutes an inactive holding of the domain name. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent’s failure to make an active use of the disputed domain name does not amount to 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).
Complainant further argues that Respondent is attempting to pass itself off as Complainant by using the LOCKHEED trademark and by claiming that it is a provider of “Defense and Security Solution [sic].” Passing off demonstrates a lack of legitimate rights and interests under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Therefore, the Panel determines that Respondent, through its conduct with the disputed domain name, is attempting to pass itself off as Complainant, and therefore concludes that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial fair use of the disputed domain name under Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
When conducting a Policy ¶ 4(a)(iii) analysis, the Panel finds that it may consider the totality of the circumstances without being limited to the enumerated factors in Policy ¶ 4(b). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples of [bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant argues that Respondent is failing to make an active use of its domain name. Complainant contends that Respondent’s website displays a single webpage indicating “Website under Re-construction,” despite the fact that there was never any content on the website to be “reconstructed.” Complainant asserts that there has been no change in the content of the webpage since May 2012. Respondent’s failure to make an active use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Complainant further argues that, despite the limited content on the website, Respondent is purporting to be Complainant through its use of the domain and resolving website. Complainant contends that Respondent is attempting to pass itself off as Complainant, a defense and security company, by displaying a message on the resolving webpage indicating that Respondent is a provider of “Defense and Security Solution [sic].” In Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001), the panel found that the respondent’s use of the disputed domain name to misrepresent itself as the complainant supported a finding of bad faith. Because the Panel believes that Respondent is attempting to pass itself off as Complainant at the disputed domain name, the Panel finds that Respondent registered the domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, Complainant argues that Respondent, at the time of the registration of the disputed domain name, had constructive and actual knowledge of Complainant’s trademark rights in the LOCKHEED mark. Complainant argues that the existence of the registered LOCKHEED trademarks shows Respondent had constructive knowledge of these marks. Complainant further contends that the cease and desist letters sent to Respondent show that Respondent had actual knowledge of Complainant’s rights in the LOCKHEED mark. The Panel finds that, due to the fame of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration)." Therefore, the Panel concludes that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedtechnology.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
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