Lockheed Martin Corporation v. Hamilton Institute
Claim Number: FA0711001106622
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan
Okin Goldsmith, of Duane Morris LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org>, registered with Godaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 6, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 7, 2007.
On November 7, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 9, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 29, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@skunkworksinternational.com, postmaster@skunkworksinternational.net, and postmaster@skunkworksinternational.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 5, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org> domain names are confusingly similar to Complainant’s SKUNK WORKS mark.
2. Respondent does not have any rights or legitimate interests in the <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org> domain names.
3. Respondent registered and used the <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Lockheed Martin Corporation, is a leading multinational aerospace manufacturer
and advanced technology company. Complainant has registered the SKUNK WORKS
mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No.
2,621,790 issued September 17, 2002). This mark has been in use by Complainant since
the mid-1940s, and a myriad of magazine and newspaper articles, as well as
books, have been written referencing this mark in relation to Complainant. Additionally, Complainant has more than 100
domain names incorporating this mark.
Respondent
registered the <skunkworksinternational.com>, and <skunkworksinternational.net>
domain names on August 24,
2007. Respondent registered the <skunkworksinternational.org> on August 23, 2007. The domain names are not currently in use, and
are merely “parked.”
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.
Complainant registered the SKUNK WORKS mark with the USPTO,
and has therefore established rights to the mark pursuant to Policy ¶ 4(a)(i). Complainant’s
filing of the marks with the USPTO before Respondent registered the disputed
domain names secures Complainant’s rights to the mark. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum
Sept. 16, 2002) (“Under
Respondent’s <skunkworksinternational.com>, <skunkworksinternational.net>,
and <skunkworksinternational.org> domain names are confusingly similar to
Complainant’s mark. The addition of the
generic term “international” does not distinguish the disputed domain names
from Complainant’s registered SKUNK WORKS mark. In addition, because all domain names are
required to have a top-level domain, Respondent’s inclusion of the generic
top-level domains (“gTLDs”) “.net”, “.com”, and “.org” are insufficient to
distinguish the disputed domain names from Complainant’s mark. The Panel finds that the disputed domain
names are confusingly similar to Complainant’s SKUNK WORKS mark pursuant to
Policy ¶ 4(a)(i).
See Elder Mfg. Co., Inc. v. Recker,
FA 98414 (Nat. Arb. Forum Sept. 10, 2001) (“In the matter at bar it is
beyond refute that Respondent’s domain names are
virtually identical, and thus confusingly similar to Elder’s trademarks. Any
superficial differences between the domain names and the Elder trademarks are
de minimis and of no legal consequence”); see
also Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent has neither rights nor legitimate interests in the disputed domain names. Complainant has the initial burden of showing that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has made a prima facie case, the burden shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has made a prima facie showing pursuant Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. 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.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Because Respondent failed to respond to the Complaint, the
Panel assumes that Respondent lacks all rights and legitimate interests in the <skunkworksinternational.com>, <skunkworksinternational.net>,
and <skunkworksinternational.org> domain names. See Am. Express
Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to
respond, it is presumed that Respondent lacks all rights and legitimate
interests in the disputed domain name.”); see
also Talk City, Inc. v.
Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly
provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s
failure to comply with the rules ‘as it considers appropriate.”). Nonetheless, the Panel will examine all
evidence in the record to determine if Respondent has rights or legitimate
interests in the disputed domain names under Policy ¶ 4(c).
Complainant claims that Respondent has never been authorized to use the SKUNK WORKS mark. Further, the WHOIS information indicates that Respondent is “Hamilton Institute,” and makes no indication that Respondent is commonly known by the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
The <skunkworksinternational.com>,
<skunkworksinternational.net>, and <skunkworksinternational.org>
domain names do not currently resolve to active websites. Because there is no evidence that the
Respondent is using the disputed domain names, the Panel finds that Respondent
has not made 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). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13,
2000) (finding no rights or legitimate interests where the respondent failed to
submit a response to the complaint and had made no use of the domain name in
question); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel
concludes that Respondent's passive holding of the domain name does not
establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s failure to use the <skunkworksinternational.com>,
<skunkworksinternational.net>, and <skunkworksinternational.org>
domain names constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely
holding an infringing domain name without active use can constitute use in bad
faith); see also Caravan Club v. Mrgsale,
FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no
use of the domain name or website that connects with the domain name, and that
failure to made an active use of a domain name permits an inference of
registration and use in bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skunkworksinternational.com>, <skunkworksinternational.net>, and <skunkworksinternational.org> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 15, 2007
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