Lockheed Martin Corporation v. Jared Burnup
Claim Number: FA1307001508768
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Jared Burnup (“Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinstock.com>, registered with GODADDY.COM, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on July 9, 2013; the National Arbitration Forum received payment on July 9, 2013.
On July 10, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <lockheedmartinstock.com> domain name is regis-tered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. 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 July 11, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 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@lockheedmartinstock.com. Also on July 11, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 August 6, 2013, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 holds registrations for the LOCKHEED MARTIN service mark, on file with the United States Patent and Trademark Office ("USPTO"), (including Reg. No. 2,022,037, registered December 10, 1996).
Complainant uses the LOCKHEED MARTIN mark to market its services in aero-space, aeronautics and aircraft electronic systems, as well as a variety of related goods and services.
Respondent registered the <lockheedmartinstock.com> domain name on April 17, 2013.
The <lockheedmartinstock.com> domain name is confusingly similar to Com-plainant’s mark.
Respondent has not been commonly known by the disputed domain name.
Respondent is neither affiliated with, nor has it been licensed or otherwise permitted to use, Complainant’s LOCKHEED MARTIN mark.
Respondent employs the domain name to host a website that promotes other commercial websites unrelated to Complainant.
The disputed domain resolves to a website that provides click-through links, which direct Internet users to search pages or third-party commercial websites.
Respondent has neither rights to nor any legitimate interests in the contested domain name.
Respondent registered the domain name to attract Internet users to its resolving website for commercial gain by creating a likelihood of confusion with Complain-ant’s LOCKHEED MARTIN mark as to the possibility of Complainant’s affiliation with Respondent’s website.
Respondent knew of Complainant and its rights in the LOCKHEED MARTIN mark when it registered the contested domain name.
Respondent registered and uses the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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 has rights in its LOCKHEED MARTIN service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office ("USPTO"). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005):
Complainant has established rights in the … mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark Office.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that the <lockheedmartinstock.com> domain name is confus-ingly similar to Complainant’s LOCKHEED MARTIN service mark. The domain name incorporates the mark in its entirety, with the space between the terms of the mark eliminated and the addition only of the generic term “stock,” which describes an aspect of Complainant’s corporate structure, and the generic top-level domain (“gTLD”) “.com”. These alterations of the mark, made in forming the domain name, do not save the domain name from the realm of confusing similar-ity under the standards of the Policy. See, for example, Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding a respond-ent’s <amextravel.com> domain name confusingly similar to a UDRP complain-ant’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)).
And because every domain name requires a gTLD, the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to Policy ¶ 4(a)(i) analysis. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.com” does not affect the domain name for purposes of determining whether it is identical or confusingly similar to the mark of a UDRP complainant).
Likewise, see Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between the terms of a mark and the addition of a gTLD in forming a domain name do not establish distinctiveness from that mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent 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.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the contested domain name <lockheedmartinstock.com>, and that Respondent is neither affiliated with, nor has it been licensed or otherwise permitted to use Complainant’s mark. More-over, the WHOIS information for the domain name identifies the registrant only as “Jared Burnup,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in them as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS in-formation, as well as all other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent employs the <lockheedmartinstock.com> domain name to re-solve to a website that provides sponsored click-through links that direct users to search pages or third-party commercial websites for Respondent’s commercial gain. This use of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party web-sites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each visit of a mis-directed Internet user to the carried links).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent registered the disputed domain name, which is confusingly similar to Complainant’s LOCKHEED MARTIN service mark, to attract Internet users to the resolving website for its commercial gain by creating a likelihood of confusion as to the possibility of Complainant’s affiliation with that website. This is evidence of bad faith registra-tion and use of the domain name under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006), the panel there hold-ing that the registration and use of a domain name confusingly similar to a UDRP 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 proof of bad faith registration and use of the domain name under Policy ¶ 4(b)(iv)).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the LOCKHEED MARTIN service mark when it registered the contested domain name. This stands as further proof of bad faith registration of the domain name. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that a respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <lockheedmartinstock.com> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 13, 2013
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