Lockheed Martin Corporation v. Trey Andrews / lmco-md
Claim Number: FA1801001765318
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, USA. Respondent is Trey Andrews / lmco-md (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lmco-md.com>, registered with Wild West Domains, LLC.
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 Forum electronically on January 3, 2018; the Forum received payment on January 3, 2018.
On January 04, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <lmco-md.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 January 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 24, 2018 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-md.com. Also on January 4, 2018, 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 January 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant, Lockheed Martin Corporation, is a global security and aerospace company. Complainant uses its LM, LMC and LMCO marks to produce and market its products and services and has rights in the marks based upon multiple registrations of LM-, LMC-, and LMCO formative marks with various trademark agencies, including the Canadian Intellectual Property Office (CIPO) (e.g. LMCO—Reg. No. TMA512415, registered May 28, 1999). Respondent’s <lmco-md.com> is identical or confusingly similar to Complainant’s LMCO mark as the disputed domain name includes the mark in its entirety and adds only the letters “md”, separated from the mark by a hyphen, and appends the generic top-level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or license to use the LMCO mark. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is not making an active use of the disputed domain name and uses the name as part of an email address used to pass off as Complainant and conduct a fraudulent phishing scheme.
Respondent has registered and used the disputed domain name in bad faith. Respondent is disrupting Complainant’s business through the use of a fraudulent phishing scheme. In addition, Respondent is attempting to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. Further, Respondent must have had actual knowledge of Complainant’s mark at the time it registered and subsequently used the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, is a global security and aerospace company. Complainant uses its LM, LMC and LMCO marks to produce and market its products and services and has rights in the marks based upon multiple registrations of LM-, LMC-, and LMCO formative marks with various trademark agencies, including the Canadian Intellectual Property Office (CIPO) (e.g. LMCO—Reg. No. TMA512415, registered May 28, 1999). Respondent’s <lmco-md.com> is confusingly similar to Complainant’s LMCO mark.
Respondent does not have rights or legitimate interests in the <lmco-md.com> domain name. Respondent is not making an active use of the disputed domain name and uses the name as part of an email address used to pass off as Complainant and conduct a fraudulent phishing scheme.
Respondent has registered and used the disputed domain name 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 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.”).
Complainant has rights in the LM, LMC and LMCO marks under Policy ¶ 4(a)(i) based upon its registration with various trademark agencies, including the CIPO. Registration with the CIPO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Longo Brothers Fruit Markets Inc. v. John Obeye / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM, FA 1734634 (Forum July 17, 2017) (“Registration with the CIPO (or any other governmental authority for that matter) suffices to demonstrate rights in a mark under Policy ¶ 4(a)(i), even if Respondent is located in another country.”).
Respondent’s <lmco-md.com> domain name is confusingly similar to Complainant’s LMCO mark as it contains the mark in its entirety, and separated by a hyphen, adds the letters “md” as well as the gTLD “.com.”
Respondent has no rights or legitimate interests in <lmco-md.com>. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the LMCO mark. Where a response is lacking, the WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Trey Andrews / lmco-md.” Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Respondent’s lack of rights or legitimate interests in the <lmco-md.com> domain name is shown by his failure to use the name for bona fide offering of goods or services, or legitimate noncommercial or fair use. Respondent has made no effort to use <lmco-md.com> with an active website since the domain name was registered. Where the respondent is not using the disputed domain name in connection with an active website, the respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). Respondent’s domain name resolves to a blank webpage. Therefore, Respondent does not have rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent’s lack of rights and legitimate interests is also shown by his attempts to pass himself off as Complainant in fraudulent emails. Use of a domain name to pass off as a complainant via fraudulent emails is not a use showing rights or legitimate interests in the name per Policy ¶ 4(c)(i) or (iii). See Lockheed Martin Corporation v. mail mail, FA 1739473 (Forum, Aug. 9, 2017) (“Respondent does not use the <lm-corporation.com> domain name for any legitimate purpose because Respondent uses it to fraudulently obtain valuable and highly sensitive government contracts. Using a confusingly similar domain name to fraudulently obtain information or money fails to constitute a bona fide offering of goods or services or legitimate noncommercial or fair use”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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)). Here, Respondent attempts to pass himself off as Complainant by using the <lmco-md.com> domain name to set up a fraudulent email address in order to falsely pose as a representative of Complainant. Respondent has used this address to contact a supplier of Complainant’s in an attempt to order valuable goods.
Respondent has registered and uses the <lmco-md.com> domain name in bad faith because Respondent is attempting to pass off as Complainant to conduct a phishing scheme. Use of a domain name to phish for personal information in fraudulent emails is bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass himself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv)). Here, Respondent is sending requests for computer goods from a person posing as “Trey Andrews, VP IT” of Lockheed Martin Corporation, and using an email address which does not originate from Complainant. Therefore, Respondent registered and uses the disputed domain name in bad faith.
Respondent has registered and uses the <lmco-md.com> domain name in bad faith because Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s own website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Bad faith under Policy ¶ 4(a)(iii) can be found where a respondent does not make an active use of a domain name. See VideoLink, Inc. v. Xantech Corporation, FA 1608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Finally, due to the fame and notoriety of its marks, there is no reason for Respondent to have registered the disputed domain name other than to trade off the reputation and goodwill of the mark and to perpetrate fraudulent activities. Therefore, Respondent had actual knowledge of Complainant’s rights in the LM, LMC and LMCO marks when it registered <lmco-md.com>, supporting a finding of bad faith under Policy ¶ 4(a)(iii). A respondent’s actual knowledge of a mark may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”).
Complainant 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-md.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 10, 2018
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