Lockheed Martin Corporation v. Samantha Wilkinson
Claim Number: FA1807001795012
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 Samantha Wilkinson (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lmcocareer.com> (the “Domain Name”), registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 2, 2018; the Forum received payment on July 2, 2018.
On July 3, 2018, Google LLC confirmed by e-mail to the Forum that the <lmcocareer.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 July 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 23, 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@lmcocareer.com. Also on July 3, 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 July 27, 201 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant owns the trade mark LMCO registered in Canada as of 1997 in relation to engineering services. It registered <lmco.com> in 1994 and uses this domain name for corporate e mail addresses.
The Domain Name registered in 2018 is confusingly similar to Complainant’s LMCO trade mark adding only the generic/descriptive term ‘career’ and the non-distinguishing gTLD .com.
Respondent is not commonly known by the Domain Name and Complainant has not authorised Respondent to use it. The Domain Name which has not been used for an active web site has been used for e mail addresses in order to defraud Complainant and its customers. This cannot be a bona fide use or legitimate non commercial fair use. It is, in fact bad faith registration and use disrupting Complainant’s business under para 4 (b)(iii) and also being passing off creates a likelihood of confusion amongst Internet users sufficient to be bad faith registration and use under Para 4 (b)(iv). Use to impersonate Complainant shows actual knowledge of Complainant and its business. Respondent has lost at least two other UDRP cases involving marks of Complainant demonstrating a pattern of bad faith registration and use under 4 (b)(ii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark LMCO registered in Canada as of 1997 in relation to engineering services. It registered <lmco.com> in 1994 and uses this domain name for corporate e mail addresses.
The Domain Name registered in 2018 has been used for an e mail fraudulent scam using the name of one of Complainant’s employees.
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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant’s LMCO mark (registered in Canada as of 1999 for engineering services), the generic words ‘career’ and the gTLD.com. Complainant has used <lmco.com> since 1996 including for corporate e mail addresses. Previous panels have found confusing similarity when a respondent merely adds generic terms to a complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic word ‘career’ does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish the Domain Name from the LMCO mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the TLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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 Domain Name has been used in a fraudulent e mail scheme using the LMCO name. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii)).
In the opinion of the panelist the use made of the Domain Name in relation to a fraudulent e mail scam is confusing in that recipients of the e mails will reasonably believe those e mails are connected to or approved by Complainant as the LMCO and the name of one of Complainant’s employees is used. This mimicking by Respondent of Complainant shows that Respondent was aware of Complainant and its business and rights and constitutes passing off. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of electronic content on the Internet under Policy 4(b)(iv). See Qatalyst Partners L.P. v Devinmore, FA 1393436 (Forum July 13, 2011)(finding that using the disputed domain name as an e mail address to pass itself off as the complainant is evidence of bad faith registration and use).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras. 4(b)(iv) and 4(b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lmcocareer.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 1, 2018
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