Lockheed Martin Corporation v. quan ZHONGJUN / quanZHONGJUN
Claim Number: FA1807001798410
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, New York, USA. Respondent is quan ZHONGJUN / quanZHONGJUN (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockhedmartinjobs.com>, registered with HiChina Zhicheng Technology Ltd.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2018; the Forum received payment on July 24, 2018.
On July 26, 2018, HiChina Zhicheng Technology Ltd. confirmed by e-mail to the Forum that the <lockhedmartinjobs.com> domain name is registered with HiChina Zhicheng Technology Ltd. and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Ltd. has verified that Respondent is bound by the HiChina Zhicheng Technology Ltd. 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 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 15, 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@lockhedmartinjobs.com. Also on July 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 August 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. It is primarily engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products and services. Complainant maintains over 590 facilities in all 50 states throughout the United States, as well as international business locations in 52 nations and territories. In 2017, its sales exceeded $51 billion. Complainant has rights in the LOCKHEED MARTIN mark based upon its registration of the mark in the United States in 1996.
Complainant alleges that the disputed domain name is confusingly similar to its mark because Respondent includes the entire mark in the disputed domain name simply removing the letter “e” and adding the generic term “jobs” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized by Complainant to use the LOCKHEED MARTIN mark. Respondent fails to use the disputed domain 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 name to host a commercial pay-per-click advertising website. Furthermore, Respondent has engaged in the act of typosquatting by purposely removing the letter “e” from LOCKHEED MARTIN. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by attracting internet users to its webpage for commercial gain through pay-per-click advertisements. Additionally, Respondent has owned the disputed domain name for three months and has failed to make a legitimate use of it. Furthermore, Respondent has engaged in the act of typosquatting by purposefully misspelling Complainant’s mark. Moreover, Respondent has engaged in a pattern of bad-faith registration by being involved in prior UDRP cases. Finally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LOCKHEED MARTIN, with rights dating back to at least 1996.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site that contains advertising links to products and services that are not related to Complainant.
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.”).
Preliminary Issue: Language of Proceeding
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Commencement Notification in Chinese and has chosen not to respond to the Complaint; the resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
The disputed domain name is confusingly similar to Complainant’s mark because it incorporates a misspelled version of the mark (the letter “e” is removed) plus the generic term “jobs” and a gTLD. An intentional misspelling of a complainant’s mark may not be sufficient to distinguish a domain name from a mark. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (“The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). Additionally, the addition of a generic term and a gTLD to a mark may not be sufficient to distinguish a mark from a domain name. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify a respondent and thus make a commonly known by determination. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the WHOIS Respondent as “quan ZHONGJUN.” Consequently, the Panel finds that the Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Rather, Respondent attempts to commercially gain by redirecting internet users to a webpage that displays pay-per-click advertisements for products and services not related to Complainant. Use of a disputed domain name to commercially gain through advertisements may not be considered a bona fide offering or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (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.”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving website contains advertising links to third party websites unrelated to Complainant’s business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockhedmartinjobs.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 20, 2018
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