Lockheed Martin Corporation v. Mohidul Islam / e Park Ltd
Claim Number: FA1409001581948
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Mohidul Islam / e Park Ltd (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ceolockheedmartincorporation.com>, registered with Name.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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 26, 2014; the National Arbitration Forum received payment on September 26, 2014.
On September 26, 2014, Name.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <ceolockheedmartincorporation.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the domain name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 September 26, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2014 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@ceolockheedmartincorporation.com. Also on September 26, 2014, 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 23, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
On October 24, 2014, the National Arbitration Forum received correspondence from Respondent in which he did not contest the transfer of the domain name.
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.
Complainant
i. Complainant owns the LOCKHEED MARTIN mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,289,019, registered Oct. 26, 1999).
ii. Complainant uses the LOCKHEED MARTIN mark in connection with its aerospace and aeronautics goods and services, as well as a variety of goods and services related thereto.
iii. Complainant operates online through <lockheedmartin.com> and <lockheed.com>.
i. Policy ¶ 4(a)(i)
1. The disputed domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark because Respondent has simply added the generic term “corporation” and the generic acronym “CEO” to the mark.
ii. Policy ¶ 4(a)(ii)
1. Respondent lacks rights or legitimate interests in the disputed domain name.
2. Respondent is not commonly known by the <ceolockheedmartincorporation.com> domain name. Respondent is neither licensed nor authorized to use the LOCKHEED MARTIN mark.
3. Respondent does not provide any bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name.
4. Respondent currently does not have an active use of the disputed domain name.
iii. Policy ¶ 4(a)(iii)
1. Respondent has not made an active use of the disputed domain name.
2. Respondent had actual knowledge of Complainant’s rights in the mark given the well-known status of Complainant’s rights in the mark.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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 uses the LOCKHEED MARTIN mark in connection with its business in aerospace, aeronautics, electronic systems, information and technology systems. Complainant claims to own the LOCKHEED MARTIN mark through its trademark registrations with the USPTO (e.g., Reg. No. 2,289,019, registered Oct. 26, 1999). Complainant argues that such registrations are sufficient to establish rights in the LOCKHEED MARTIN mark pursuant to Policy ¶ 4(a)(i) requirements. Complainant’s argument is supported by previous UDRP decision. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). Accordingly, the Panel finds that Complainant’s USPTO registrations satisfy the requirements of Policy ¶ 4(a)(i) and finds Complainant has rights in the mark.
Complainant argues that the <ceolockheedmartincorporation.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark because Respondent has simply added the generic term “corporation” and the generic acronym “CEO” to the mark. The disputed domain name also differs from the mark by the affixation of the generic top-level domain (“gTLD”) “.com.” Past panels have found that a domain name differing from a mark by only the addition of generic terms does not escape confusing similarity, and that the affixation of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis. See Warner Bros. Entm’t Inc.; New Line Prods., Inc. & DC Comics v. Procount Bus. Servs., FA 360942 (Nat. Arb. Forum Dec. 22, 2004) (finding that the addition of one or more generic terms and a gTLD as well as the omission of spaces fails to create a meaningful distinction between the disputed domain name and the mark within it because “[s]uch additions do not disguise the fact that the dominant features of the domain names are [c]omplainant’s marks, and each domain name is therefore confusingly similar to the marks pursuant to Policy ¶ 4(a)(i)”). As such, the Panel finds that Respondent’s <ceolockheedmartincorporation.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
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.”).
Complainant claims that Respondent lacks rights or legitimate interests in the disputed domain name. In so arguing, Complainant alleges that Respondent is not commonly known by the <ceolockheedmartincorporation.com> domain name. The WHOIS information identifies “Mohidul Islam” as the registrant of the disputed domain name. Further, Complainant urges that Respondent is neither licensed nor authorized to use the LOCKHEED MARTIN mark. Respondent has failed to submit a response to refute any of Complainant’s contentions. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the <ceolockheedmartincorporation.com> domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant claims that Respondent currently does not have an active use for the disputed domain name. Past panels have refused to find a bona fide offering of goods or services, or a legitimate noncommercial or fair use where there is no active use of the disputed domain name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). Therefore, the Panel finds that Respondent’s lack of use of the disputed domain name does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively.
Complainant has proven this element.
Complainant argues that Respondent registered and is using the disputed domain name in bad faith. Complainant’s Policy ¶ 4(a)(iii) arguments fall primarily outside of the perimeter of Policy ¶ 4(b), however, the Panel may still find bad faith in regards to solely Policy ¶ 4(a)(iii) arguments. See Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)] of the Policy, is not conclusive that the [<euro-tunnel.com>] domain name in issue was registered in and is being used in bad faith.”).
Complainant maintains that Respondent has not made an active use of the disputed domain name and has made no demonstrable preparations to use it. Past panels have found evidence of bad faith where the respondent does not make an active use of the disputed domain name. 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). As such, the Panel finds that Respondent has not made an active use of the disputed domain name and that this is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant claims that Respondent had actual or constructive notice of Complainant’s rights in the LOCKHEED MARTIN mark because of the well-known status of Complainant’s mark and Respondent’s continued use of the disputed domain name after Complainant sent a cease and desist letter. Typically, panels will not find bad faith based on only constructive knowledge. However, the Panel agrees that Respondent had actual knowledge of Complainant’s rights in the mark, and finds evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See The Am. Auto. Assoc., Inc. v. Zag Media Corp., FA 1226952 (Nat. Arb. Forum Nov. 13, 2008) ("Mere constructive knowledge is insufficient to support a finding of bad faith."); see also 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").
Complainant has proven this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <ceolockheedmartincorporation.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: October 24, 2014
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