Lockheed Martin Corporation v. N/A / Wynndham Grand
Claim Number: FA1303001491860
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is N/A / Wynndham Grand (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lmco-lockheedgroup.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 27, 2013; the National Arbitration Forum received payment on March 27, 2013.
On Mar 28, 2013, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <lmco-lockheedgroup.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.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 March 29, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2013 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@lmco-lockheedgroup.com. Also on March 29, 2013, 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 April 29, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC 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
Complainant made the following contentions.
1. Respondent registered the <lmco-lockheedgroup.com> domain name on January 7, 2013.
2. Policy ¶ 4(a)(i)
a. Complainant has registered the LOCKHEED mark with federal trademark authorities throughout the world, including the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,627,156 registered October 1, 2002) and China’s State Administration for Industry and Commerce (“SAIC”) (Reg. No. 7,192,647 registered August 21, 2012).
b. The <lmco-lockheedgroup.com> domain name is confusingly similar to Complainant’s LOCKHEED mark.
i. The term “lmco” is a well-known acronym for Complainant’s corporate name, Lockheed Martin Corporation.
3. Policy ¶ 4(a)(ii)
a. Respondent is not commonly known by the <lmco-lockheedgroup.com> domain name, either as a business, individual, or other organization.
b. Respondent is neither affiliated with, nor has it been licensed or permitted to use Complainant’s marks or any domain names incorporating the marks.
c. Respondent is not using the <lmco-lockheedgroup.com> domain name for any purpose at this time.
i. The disputed domain name currently resolves to a page indicating that the site is under construction.
ii. Respondent has owned the disputed domain for nearly three months, and has failed to make any developments or “demonstrable preparations” to use the domain in connection with a bona fide offering of goods or services.
4. Policy ¶ 4(a)(iii)
a. Respondent’s failure to make an active use of the <lmco-lockheedgroup.com> domain name constitutes bad faith.
b. Respondent has knowledge of Complainant and its rights in the LOCKHEED mark.
i. Respondent has had actual knowledge at least since receiving Complainant’s cease and desist letter.
ii. Complainant’s trademark registrations for the LOCKHEED mark establish constructive notice.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that has been engaged for many years in the aeronautics, aviation and related industries.
2. Complainant has registered the LOCKHEED mark with federal trademark authorities throughout the world, including the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,627,156 registered October 1, 2002) and China’s State Administration for Industry and Commerce (“SAIC”) (Reg. No. 7,192,647 registered August 21, 2012).
3. On January 7, 2013, Respondent registered the <lmco-lockheedgroup.com> domain name which is not used for an active website.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark.
Complainant claims rights in the LOCKHEED mark under Policy ¶ 4(a)(i). Complainant presents evidence of its registration of the mark with the USPTO (Reg. No. 2,627,156 registered October 1, 2002) and the SAIC (Reg. No. 7,192,647 registered August 21, 2012), among other trademark authorities. The Panel holds that Complainant’s registrations of the LOCKHEED mark confer rights in the mark pursuant to 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).
The second question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s LOCKHEED mark. Complainant urges that Respondent’s <lmco-lockheedgroup.com> domain name is confusingly similar to Complainant’s LOCKHEED mark. Complainant claims that the term “lmco” is a well-known acronym for Complainant’s corporate name, Lockheed Martin Corporation. Complainant notes that disputed domain name also adds the generic term “group” and the generic top-level domain (“gTLD”) “.com.” The Panel notes that the disputed domain name adds a hyphen as well. The Panel finds that none of these changes is capable of distinguishing the disputed domain name from Complainant’s mark, rendering the <lmco-lockheedgroup.com> domain name confusingly similar to Complainant’s LOCKHEED mark pursuant to Policy ¶ 4(a)(i). See Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”); see also 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 has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s LOCKHEED trademark and to use it in its domain name, preceding it by Complainant’s well-known acronym and adding the generic word “group”, thus implying that the domain name is an official domain name of Complainant and that it will lead to an official website of Complainant, neither of which is true;
(b) The Panel accepts and agrees with the submission of Complainant that “Complainant’s Marks are not descriptive words in which the Respondent might have an interest. In fact, an Administrative Panel has found that Complainant’s LOCKHEED mark is an “invented term,” and that LOCKHEED MARTIN “is an arbitrary mark” that is “highly distinctive,” thus increasing “the likelihood of Internet user confusion involving Complainant’s mark and the disputed domain name.” Lockheed Martin Corporation v. Ning Ye, WIPO Case No. D2000-1733 (May 17, 2001) (Ordering the transfer of <lockheedmartin.org> to Lockheed Martin Corporation);
(c) Respondent has then retained the domain name without using it in connection with an active website or for any other apparently legitimate purpose;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent is not commonly known by the <lmco-lockheedgroup.com> domain name, either as a business, individual, or other organization. Complainant further contends that Respondent is neither affiliated with, nor has it been licensed or permitted to use Complainant’s marks or any domain names incorporating the marks. The Panel notes that the WHOIS information identifies Respondent as “N/A / Wynndham Grand.” In light of this evidence, as well as Respondent’s failure to respond to this proceeding, the Panel concludes that Respondent is not commonly known by the <lmco-lockheedgroup.com> domain name within the meaning of 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);
(f) Complainant argues that Respondent has owned the <lmco-lockheedgroup.com> domain for nearly three months, and has failed to make any developments or demonstrable preparations to use the domain in connection with a bona fide offering of goods or services since that time. Complainant notes that the disputed domain currently resolves to a page indicating that the site is under construction. The Pane finds that Respondent’s failure to make an active use of the domain over that time illustrates Respondent’s lack of rights or legitimate interests in the domain under Policy ¶ 4(a)(ii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. 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)”).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent’s knowledge of Complainant and Complainant’s rights in the LOCKHEED mark demonstrate Respondent’s bad faith in registering the disputed domain. Complainant argues that its numerous trademark registrations for the LOCKHEED mark establish constructive notice, while Complainant’s issuance of a cease and desist letter to Respondent establish Respondent’s actual knowledge. The Panel notes that constructive knowledge has typically been considered insufficient to support a finding of bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."). The Panel, nonetheless, determines that Respondent had actual knowledge of Complainant’s mark at the time Respondent registered the domain given the fame and ubiquity of Complainant. As the Panel so determines, the Panel holds that Respondent registered the <lmco-lockheedgroup.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Secondly, Complainant alleges that Respondent’s failure to make an active use of the <lmco-lockheedgroup.com> domain name constitutes bad faith. Complainant claims that Respondent is currently using the disputed domain name to resolve to a site which features the words “This Website is Under Construction. Come Back Soon.” and nothing else. The Panel finds Respondent’s inactive use of the domain name over the three months that Respondent has had it indicates that Respondent registered and is using the <lmco-lockheedgroup.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the LOCKHEED mark and the lack of any explanation by Respondent for registering and retaining the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lmco-lockheedgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: May 1, 2013
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