Lockheed Martin Corporation v. Armando Castorena
Claim Number: FA1702001717508
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, California, USA. Respondent is Armando Castorena (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinco.org>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 15, 2017; the Forum received payment on February 15, 2017.
On February 16, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lockheedmartinco.org> domain name is registered 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 February 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 2017 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@lockheedmartinco.org. Also on February 16, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 16, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
1. Respondent’s <lockheedmartinco.org> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <lockheedmartinco.org> domain name.
3. Respondent registered and uses the <lockheedmartinco.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a global provider of security and aerospace products and services, provided under the LOCKHEED and LOCKHEED MARTIN marks. Complainant holds a registration for the LOCKHEED MARTIN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,022,037, registered Dec. 10, 1996), and has also registered the LOCKHEED marks with government agencies in North and South America, Europe, Asia, Africa, and Australia.
Respondent registered the <lockheedmartinco.org> domain name on January 4, 2017, and it resolves to an inactive webpage displaying a “404” error message.
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(f), 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 (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 Panel finds that Complainant’s registration of the LOCKHEED MARTIN mark with the USPTO, as well as other governmental authorities internationally, is sufficient to show rights in the mark. See Rackspace US, Inc. v. Russell Harrower, FA 1592005 (Forum Jan. 5, 2014) (“As stated above, Complainant has shown rights in the mark RACKSPACE by virtue of its registrations in the US, Europe, Mexico, Turkey, as well as in Australia, Respondent’s country of origin. All of the trademark registrations predate the registration of the disputed domain name by the Respondent and are sufficient evidence for Complainant’s rights under Policy ¶ 4(a)(i).”).
Respondent’s <lockheedmartinco.org> domain name incorporates the LOCKHEED MARTIN mark in its entirety, eliminating the space, and adds the generic abbreviation “co” and the “.org” gTLD. “Elimination of punctuation and the space between the words of [c]omplainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).” U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007). Likewise, “[t]he mere addition of [a] generic term . . . does not reduce the likelihood of confusion under Policy 4(a)(i).” Victoria’s Secret v. Plum Promotions, FA 96503 (Forum Feb. 27, 2001). Hence, the Panel finds that Respondent’s <lockheedmartinco.org> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
The Panel finds that Complainant has satisfied Policy 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 (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 (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 maintains that Respondent lacks rights and legitimate interests in the <lockheedmartinco.org> domain name. To support its argument, Complainant asserts that Respondent is not commonly known by the disputed domain name. Previous WHOIS information associated with this case indicated that Respondent used the “Domains By Proxy, LLC” privacy service to shield its identity. The privacy service subsequently identified Respondent as “Armando Castorena.” Panels have concluded that the respondent is not commonly known by the disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent is commonly known by the disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). Accordingly, the Panel finds that Respondent is not commonly known by the <lockheedmartinco.org> domain name.
Complainant states it has not authorized or licensed Respondent to use the LOCKHEED marks, and Respondent is not affiliated with Complainant. Complainant asserts that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the disputed domain name. The Panel notes that Respondent’s <lockheedmartinco.org> domain name resolves to an inactive webpage displaying a “404” error message. “[Policy ¶] 4(c)(i) requires [r]espondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [respondent] of the dispute.’” Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000). Prior panels have found that 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. George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007). Thus, the Panel finds that Respondent’s non-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) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy 4(a)(ii).
Respondent’s <lockheedmartinco.org> resolves to a blank webpage displaying a “404” error message. Previous panels have found that merely holding an infringing domain name without active use is evidence of bad faith. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000). Accordingly, the Panel finds that Respondent’s passive holding of the disputed domain name demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant contends that, in light of the fame and notoriety of Complainant's LOCKHEED MARTIN mark, it is inconceivable that Respondent could have registered the disputed domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel agrees and finds that Respondent knew of Complainant and its rights to the LOCKHEED MARTIN mark when registering <lockheedmartinco.org>, and thus registered in bad faith under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that 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 <lockheedmartinco.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 17, 2017
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