Lockheed Martin Corporation v. Chris Long
Claim Number: FA1805001789661
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., District of Columbia, USA. Respondent is Chris Long (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com>, registered with GoDaddy.com, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 31, 2018; the Forum received payment on June 1, 2018.
On June 4, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 June 7, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 27, 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@indianaskunkworks.com, postmaster@midwestskunkworks.com, postmaster@hoosierskunkworks.com. Also on June 7, 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 June 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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, is the world’s largest defense contractor and a global security and aerospace company. Complainant uses the SKUNK WORKS mark to provide and market its products. Complainant has rights in the SKUNK WORKS mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,652,258, registered Nov. 19, 2002). Respondent’s <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names are confusingly similar to Complainant’s mark because each name incorporates the entire SKUNK WORKS mark, eliminating the space, and adds the geographic/descriptive terms “indiana”, or “midwest”, or “hoosier” along with a “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names. Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use the SKUNK WORKS trademark in any way. Additionally, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to impersonate Complainant to trade off on Complainant’s business and goodwill. In addition, Respondent used the disputed domain names to host parked webpages that contain pay-per-click links. Finally, Respondent fails to make an active use of the <indianaskunkworks.com> and <hoosierskunkworks.com> domain names.
Respondent registered and is using the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names in bad faith. Respondent has engaged in pattern of bad faith registration and use. Next, Respondent uses the disputed domain names to intentionally attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s SKUNK WORKS mark as to the source, sponsorship, affiliation, and/or endorsement of Respondent’s website. Next, Respondent is attempting to disrupt Complainant’s business by directing internet traffic to Respondent’s webpages. In addition, Respondent used a privacy service to conceal its identity. Further, Respondent failed to respond to Complainant’s cease and desist letter. Finally, Respondent registered the disputed domain names with actual knowledge of Complainant’s SKUNK WORKS mark prior to the registration of the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names were all registered on October 22, 2017.
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 asserts rights in the SKUNK WORKS mark based upon registration with the USPTO. Registration with the USPTO is sufficient to establish Complainant’s rights in a mark pursuant to Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Complainant provides a copy of its registration of the SKUNK WORKS mark with the USPTO (e.g., Reg. No. 2,652,258, registered Nov. 19, 2002). Therefore, the Panel finds that Complainant has established its rights in the mark according to Policy
¶ 4(a)(i).
Next, Complainant argues that Respondent’s <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names are confusingly similar to Complainant’s SKUNK WORKS mark as Respondent merely adds a geographic/descriptive term to form each domain name. Additions of a geographic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Lockheed Martin Corporation v. Andrew Ticer, FA1653043 (Forum Jan. 25, 2016) (“Panel finds the disputed domain names [e.g., skunkworksoregon.biz>] to be confusingly similar to the trademark as they wholly incorporate the trademark and differ from the trademark only by the addition of the geographic term ‘Oregon,’ various gTLDs and the elimination of spacing, all being inconsequential changes in this case.”); Complainant argues that Respondent merely adds the terms “indiana” or “midwest” or “hoosier” along with a “.com” gTLD to Complainant’s SKUNK WORKS mark to form each domain name. Thus, the Panel concludes that Respondent’s domain names are confusingly similar to Complainant’s marks under a Policy ¶ 4(a)(i) analysis.
Complainant argues that the Respondent lacks rights and legitimate interests in the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names because Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use the SKUNK WORKS trademark in any way. Where a response is lacking, relevant WHOIS information may be used to determine whether a Respondent is commonly known by a domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization from Complainant to use its mark may be evidence that a Respondent is not commonly known by a domain name per Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Complainant provides a copy of the WHOIS information which identifies the Respondent as “Chris Long.” Further, Complainant contends that Respondent was never authorized to use the SKUNK WORKS trademark in any fashion. Therefore, the Panel finds that the Respondent lacks rights and legitimate interests in the disputed domain under a Policy ¶ 4(c)(ii) analysis.
Next, Complainant argues Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant claims Respondent used the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names to redirect visitors to Respondent’s page by impersonating Complainant, in order to trade off on Complainant’s business and goodwill. Using a domain name to impersonate a complainant to trade off on the goodwill and business of the complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is 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).”). Complainant provides a screenshot of the disputed domain names resolving websites, which demonstrate Respondent’s prior use of the disputed domain names in an attempt to attract visitors to Respondent’s page by impersonating Complainant, trading off of Complainant’s name and logos, and adopting Complainant’s identity wholesale. Thus, the Panel agrees with Complainant and finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Additionally, Complainant claims Respondent is now using the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names to resolve to parked pages that host pay-per-click links. Using a confusingly similar domain name to display pay-per-click links is further evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (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.”). Here, Complainant provides screenshots of the websites resolving from Respondent’s disputed domain names, which all resolve to parked pay-per-click websites. Therefore, the Panel finds that the Respondent lacks rights or legitimate interests with respect to the disputed domain names pursuant to Policy ¶¶ 4(c)(i) and (iii).
Thus, Complainant has also satisfied Policy ¶4(a)(ii).
Complainant argues that Respondent registered and is using the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names in bad faith as Respondent has engaged in a pattern of bad faith registration and use. A respondent’s registration of multiple domain names incorporating variants of the complainant’s mark may reflect a pattern of bad faith registration under Policy ¶ 4(b)(ii). Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Here, Complainant contends that Respondent has established a pattern of bad faith registration as evidenced by its registering of the three separate domain names at issue in this proceeding all incorporating Complainant’s SKUNK WORKS mark and all on the same date. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(ii).
Complainant alleges that Respondent registered and is using the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names 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 Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Use of a disputed domain name to host pay-per-click websites constitutes bad faith under Policy ¶ 4(b)(iv). T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Complainant provides screenshots of the websites resolving from Respondent’s disputed domain names, which all resolve to parked websites hosting pay-per-click advertisements for the presumed commercial gain of Respondent. Therefore, The Panel agrees with Complainant and finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Next, Complainant argues that Respondent registered and is using the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering competing goods or services. Commercially benefiting via intentional confusion can evince bad faith registration and use. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Complainant claims that Respondent created a likelihood of confusion with Complainant and its trademarks by registering domains that redirected users to Respondent’s website displaying Complainant’s marks and logos, copying Complainant’s commercial identity. The Panel agrees that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent registered the disputed domain names with actual knowledge of Complainant’s mark. Actual knowledge may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA1591796 (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 an in competition with Complainant.). Complainant asserts that given Complainant’s federal registrations of its SKUNK WORKS mark, the fame and longstanding use of the mark, the fact that the domain names comprise Complainant’s mark in their entirety, and the fact that the website to which the disputed domain names resolved displayed Complainant’s marks and logos, Respondent undoubtedly knew of Complainant’s rights in the SKUNK WORKS mark prior to registering the domain names. The Panel infers that Respondent had actual knowledge of Complainant’s rights in the SKUNK WORKS mark when it registered and subsequently used the <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names—thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also 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 <indianaskunkworks.com>, <midwestskunkworks.com>, and <hoosierskunkworks.com> domain names be TRANSFERRED from Respondent to Complainant.
David. A. Einhorn, Panelist
Dated: July 12, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page