Lockheed Martin Corporation v. Xiaolei Wang
Claim Number: FA1803001778021
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, United States of America. Respondent is Xiaolei Wang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com>, registered with NameSilo, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 20, 2018; the Forum received payment on March 20, 2018.
On March 21, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>,and <lockhedmartingear.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 March 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 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@lockheedmartinggear.com, postmaster@lokheedmartingear.com, postmaster@lockheedmatingear.com, postmaster@lockhedmartingear.com. Also on March 26, 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 April 17, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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 that employs approximately 100,000 people worldwide and is principally engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products and services. Complainant owns numerous worldwide registrations for its LOCKHEED and LOCKHEED MARTIN marks, which includes registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,627,156 registered Oct. 1, 2002 and Reg. No. 2,022,037 registered Dec. 10, 1996, respectively). Respondent’s disputed domain names are confusingly similar to Complainant’s marks as the marks are incorporated entirely while some of the domain names misspell the marks. Further, the domain names include the term “gear” or “ggear,” and add the generic top-level domain (“gTLD”) “.com.”
Respondent should be regarded as having no rights or legitimate interests in the disputed domain names. Complainant has not granted license or permission to Respondent for the use of its marks. Further, based on information and belief, Respondent is not commonly known by the disputed domain names either as a business, individual, or other organization. Respondent is not using the domain names at issue in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead Respondent has made no demonstrable preparations to use the domain names, and the domain names display pay-per-click links and advertisements, and redirect internet users to sponsored websites. Respondent’s activities constitute passing off.
Respondent registered and used the disputed domain names in bad faith as Respondent pattern of registrations targeting Complainant’s marks prevents Complainant from reflecting its mark in corresponding domain names. Further, Respondent gains commercially from the domain names by creating consumer confusion. Respondent’s failure to actively use the names is further evidence of its bad faith. Additionally, Respondent is typosquatting on Complainant’s marks in bad faith. Finally, Respondent had actual knowledge of Complainant’s marks at the time it registered and subsequently used the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names.
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 claims rights to its LOCKHEED and LOCKHEED MARTIN marks through numerous worldwide registrations, which include registrations with the USPTO (e.g., Reg. No. 2,627,156 registered Oct. 1, 2002 and Reg. No. 2,022,037 registered Dec. 10, 1996, respectively). Registrations of marks worldwide, including with the USPTO is sufficient to demonstrate rights to said marks. See Hewlett-Packard Dev. Co., L.P. v. Wu Wenbing, FA 1294944 (Forum Dec. 31, 2009) (“The Panel finds Complainant has sufficiently established rights in the HP mark . . . through its numerous registrations with many governmental trademark authorities . . . including the State Intellectual Property Office of the People’s Republic of China . . . and the United States Patent and Trademark Office . . .”). Accordingly, the Panel finds Complainant’s registrations demonstrate rights to its marks per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names are confusingly similar to Complainant’s LOCKHEED and LOCKHEED MARTIN marks. Panels have found incorporating an entire mark, misspelling a mark, adding a generic or descriptive term, and adding a gTLD to a domain name are not changes which distinguish a resultant domain name from an incorporated mark for purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”). Here, the domain names at issue include a gTLD and incorporate Complainant’s marks while adding the generic or descriptive term “gear” or “ggear.” The <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names also misspell Complainant’s marks by the removal of one letter “c,” “r,” or “e,” respectively. The Panel finds Respondent’s domain names are confusingly similar to Complainant’s marks.
Complainant has proved 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues Respondent has no rights or legitimate interests in the <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names. Further, Complainant argues Respondent is not commonly known by the domain names. According to Policy ¶ 4(c)(ii), a respondent is not commonly known by a domain name where there is no evidence in the record indicating so. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Here, Complainant indicates, based on information and belief, Respondent is not commonly known by the disputed domain names, either as a business, individual, or other organization. The WHOIS information of record lists registrant as “Domain Administrator” or “Xiaolei Wang.” Complainant claims it has never granted Respondent license or permission to use its marks. The Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant contends Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the domain names display pay-per-click links and advertisements which redirect internet users to sponsored websites. Such uses have been found by prior panels to not be indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Complainant provides screenshots of the websites resolving from the disputed domain names which indicate the display of third-party hyperlinks. The Panel finds Respondent’s use of the domain names at issue are not in accordance with Policy ¶¶ 4(c)(i) and (iii).
Complainant also argues Respondent has owned the disputed domain names for over three months and has made no demonstrable preparations to use the domain names. Inactive holding of a domain name is not indicative of rights or legitimate interests therein per the Policy. See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). The Panel finds Respondent has not made an active use of the disputed domain names and has no demonstrated rights or legitimate interests in respect of the domain names.
Complainant has proved this element.
Complainant argues Respondent registered and used the domain names to create a likelihood of confusion with Complainant’s marks for commercial gain. Domain names that are used to confuse and attract Internet users for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Here, Complainant indicates Respondent is using the domain names at issue to redirect internet users to commercial websites through various sponsored click-through links with the intent to attract internet users to Respondent’s websites for commercial gain by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s websites. The Panel finds Respondent’s registration and use of the domain names are in bad faith per Policy ¶ 4(b)(iv).
Complainant asserts that Respondent’s failure to actively use the disputed domain names is evidence of its bad faith. Inactive holding of a domain name can be evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (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).”). The domain names are not being actively used. The Panel finds Respondent’s inactive holding of the domain names to be evidence of its bad faith per Policy ¶ 4(a)(iii).
Complainant also contends that in light of the fame and notoriety of Complainant's LOCKHEED MARTIN mark, it is inconceivable that Respondent could have registered the <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names without actual and/or constructive knowledge of Complainant's rights in the marks. The Panel agrees with Complainant that Respondent had actual knowledge of Complainant's rights in the marks prior to registering the disputed domain names and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Complainant claims its marks and associated legitimate websites enjoy a “well-known” status which creates the presumption that Respondent knew of the marks and Complainant’s rights therein. The Panel finds Respondent had actual knowledge of Complainant’s rights in the marks and thus registered the names in bad faith.
Finally, Complainant contends Respondent’s registration of the <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names constitutes typosquatting. Because the domain names contain an added term, the Panel finds the names are not typosquatted versions of Complainant’s marks.
Complainant has proved this element.
DECISION
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 <lockheedmartinggear.com>, <lokheedmartingear.com>, <lockheedmatingear.com>, and <lockhedmartingear.com> domain names be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: April 24, 2018
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