Lockheed Martin Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1901001827435
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 29, 2019; the Forum received payment on January 29, 2019.
On January 29, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.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 January 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 20, 2019 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@lockheedmartinsaving.com, postmaster@lockheedmartingsavings.com, postmaster@lockheedmartinsavingsplan.com, postmaster@lockheedmartinsavins.com. Also on January 31, 2019, 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.
An Additional Submission from Complainant was received on February 25, 2019, and was considered as received in a timely manner according to Forum's Supplemental Rule 7.
On February 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. Complainant has rights in the LOCKHEED MARTIN mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037, registered Dec. 10, 1996). See Compl. Ex. 11. Respondent’s <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN mark as Respondent merely incorporates the mark in its entirety, omitting the space, and adds a generic term (“saving,” “savings,” “plan,” and/or “savins”), in one instance a letter “g,” and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names. Respondent is not permitted or otherwise authorized to use Complainant’s LOCKHEED MARTIN mark. Additionally, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the <lockheedmartinsavingsplan.com> and <lockheedmartinsavins.com> domain names to generate pay-per-click revenue from sponsored-link advertisements. Further, Respondent fails to make an active use of the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> domain names except to distribute malware. Finally, Respondent’s registration of the <lockheedmartingsavings.com> domain name constitutes typosquatting.
Respondent registered and uses the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names. Respondent lists the disputed domain name for sale for more than out-of-pocket costs. Respondent also has engaged in a pattern of bad faith registration, both through the registration of multiple domain names incorporating Complainant’s mark and having a history of adverse UDRP decisions. Respondent attempts to attract, for commercial gain, users to the disputed domain names where it generates pay-per-click revenue from sponsored-link advertisements. Moreover, Respondent failed to actively use two of the disputed domain names. Respondent also attempts to use the disputed domain names to distribute malware. Furthermore, Respondent engaged in typosquatting when it registered the <lockheedmartingsavings.com> domain name. Respondent also used a privacy service when it registered the disputed domain names. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the LOCKHEED MARTIN mark prior to registering and subsequent use of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
In Complainant’s additional submission, Complainant states that there are new indicators that Respondent registered the disputed domain names using fraudulent WHOIS contact information, which Complainant concludes further demonstrates Respondent’s bad faith.
Complainant is the owner of the following U.S. trademark registrations:
No. 2,022,037 LOCKHEED MARTIN (word), registered December 10, 1996 for services in class 42;
No. 2,627,156 LOCKHEED (word), registered October 1, 2002 for goods in class 28;
No. 2,788,896 LOCKHEED MARTIN (word), registered December 2, 2003 for goods in class 9; and
No. 2,788,897 LOCKHEED MARTIN (word), registered December 2, 2003 for goods in class 12.
Respondent registered the <lockheedmartinsaving.com> domain name on December 28, 2018, the <lockheedmartingsavings.com> domain name on January 9, 2019, the <lockheedmartinsavingsplan.com> domain name on January 4, 2019, and the <lockheedmartinsavins.com> domain name on January 11, 2019.
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 in the LOCKHEED MARTIN trademark based upon registration of the trademark with the USPTO (e.g., Reg. No. 2,022,037, registered Dec. 10, 1996). Registration of a trademark with the USPTO is sufficient to establish rights in that trademark. 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).
Therefore, the Panel finds that Complainant has established rights in the LOCKHEED MARTIN trademark.
Complainant next argues Respondent’s <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names are confusingly similar to the LOCKHEED MARTIN trademark, as the domain names incorporate the trademark in its entirety, while adding generic term(s), a letter in one case, and a gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated trademark in a Policy ¶ 4(a)(i) analysis. See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also Klein Tools, Inc. v chenxinqi, FA 1617328 (Forum July 6, 2018) (finding that the <klentools.com> domain name is confusingly similar to the KLEIN TOOLS mark as it contains the entire BANK OF AMERICA mark and merely omits the letter “l” and adds the “.com” generic top-level domain (“gTLD”)). The Panel notes that Respondent has merely incorporated the trademark in its entirety, omitted the space, and added a generic term (“saving,” “savings,” “plan,” and/or “savins”), and in one instance a letter “g,” and a “.com” gTLD when registering the disputed domain names. The Panel therefore determines that the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names are confusingly similar to the LOCKHEED MARTIN trademark per Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 that Respondent has no rights or legitimate interests in the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names, as Respondent is not commonly known by the disputed domain name/s, nor has Complainant authorized Respondent to use the LOCKHEED MARTIN trademark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). In this case, the WHOIS information of record identifies the registrant of the at-issue domain name/s as “Carolina Rodrigues / Fundacion Comercio Electronico,” and no information on the record indicates that Respondent was authorized to register a domain name incorporating Complainant’s trademark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names.
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends instead that the <lockheedmartinsavingsplan.com> and <lockheedmartinsavins.com> domain names name resolve to websites which are being used to obtain click-through revenue by linking to third-party websites. Use of a domain name to link to third party websites, presumably for commercial gain, is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). The Panel therefore determines that Respondent does not have rights or legitimate interests in the <lockheedmartinsavingsplan.com> and <lockheedmartinsavins.com> domain names.
Complainant also asserts Respondent’s inactive holding of the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> domain names indicates it does not have rights or legitimate interests in the name/s. Inactive holding of a domain name does not demonstrate rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). The fact that these disputed domain names, in combination with the fact that all four disputed domain names are obviously confusingly similar to Complainant’s trademarks, gives the Panel the conclusion that Respondent does not have rights or legitimate interests in the domain names per Policy ¶¶ 4(c)(i) or (iii).
Complainant also claims that Respondent uses the disputed domain names to distribute malware. Use of a disputed domain name to install malicious software on users’ computers may be evidence that the respondent lacks rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”). The Panel notes that at on the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> domain names’ resolving websites, there is a malware warning message in the lower right hand corner of the page. Therefore, the Panel agrees with Complainant’s conclusion, and find that Respondent’s use of the disputed domain names to install malware does not demonstrate rights or legitimate interests in the names per Policy ¶¶ 4(c)(i) or (iii).
Further, Complainant contends that Respondent’s registration of the <lockheedmartingsavings.com> domain name constitutes typosquatting, which indicates Respondent lacks rights or legitimate interest. The practice of typosquatting may support a finding that a respondent lacks rights or legitimates in the disputed domain name under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). The Panel here notes that Respondent incorporates the LOCKHEED MARTIN trademark in the disputed domain name, but adds a letter “g,” thus creating a typosquatted version of the mark. The Panel therefore agrees with Complainant and finds that Respondent lacks rights or legitimate interests per Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s only purpose in registering the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names was to gain commercially from the sale of the same, indicating its registration and sue of the name in bad faith. A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i). See Citigroup Inc. v. Kevin Goodman, FA1506001623939 (Forum July 11, 2015) (holding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrates the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i)); see also Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner"). Complainant contends that given its longstanding trademark registration of the LOCKHEED MARTIN trademark, and Respondent’s current use of the domain name to offer to sell the domain name/s, it is evident Respondent’s purpose for registering and using the domain name was and is to sell the name for a profit. The Panel agrees and find Respondent to have registered and used the disputed domain names <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> in bad faith per Policy ¶ 4(b)(i).
Complainant further contends that Respondent’s registration of the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names is part of a pattern of bad faith registration and use of domain names. A pattern of bad faith registration can be established by a showing of prior adverse UDRP precedent and/or multiple domain names in the present case that incorporate a complainant’s mark, and such a pattern can indicate bad faith per Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant includes a list of prior UDRP cases where Respondent, has been ordered to transfer ownership of domain names. The Panel also notes that the disputed domain names in the present case were registered within a two week period, and therefore determines that the registration and use of the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names is part of a pattern and is evidence of Respondent’s bad faith per Policy ¶ 4(b)(ii).
Complainant also contends that Respondent’s bad faith is indicated by its use of the <lockheedmartinsavingsplan.com> and <lockheedmartinsavins.com> domain names to link to third party websites. 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)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). The Panel finds that Respondent has registered and used the disputed domain names in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant asserts that Respondent’s failure to use the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> 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 Panel may recall Complainant’s contention that the domain name does not resolve to an active website. See Compl Ex. 12. The Panel may find Respondent’s inactive holding of the domain name to be evidence of its bad faith per Policy ¶ 4(a)(iii).
Complainant further asserts that Respondent’s use of the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> domain names to distribute malware demonstrates bad faith. Use of a disputed domain name to distribute malicious software may be evidence of bad faith under Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”). The Panel recalls that Complainant claims users who visit the two, inactive websites are infected by malware. The Panel notes again that at the <lockheedmartinsaving.com> and <lockheedmartingsavings.com> domain names’ resolving websites, there is a malware warning message in the lower right hand corner of the page. Therefore, the Panel finds that Respondent registered and uses these disputed domain names in bad faith per Policy ¶ 4(a)(iii).
Further, Complainant contends that Respondent’s registration of <lockheedmartingsavings.com> domain name constitutes typosquatting, which demonstrates Respondent’s bad faith. The practice of typosquatting may support a finding that a respondent registered and uses a disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). The Panel agrees with Complainant and finds that Respondent acted in bad faith per Policy ¶ 4(a)(iii).
In Complainant’s additional submission, Complainant points to the fact that Respondent’s use of fraudulent WHOIS contact information when registering the disputed domain names, further demonstrates Respondent’s bad faith. The Panel agrees with this conclusion. See McDonald’s Corp. v. Holy See, FA304000155458 (Forum June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”).
Finally, Complainant contends that in light of the fame and notoriety of Complainant's LOCKHEED MARTIN trademark, it is inconceivable that Respondent could have registered the <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names without actual and/or constructive knowledge of Complainant's rights in the trademark. However, any arguments of bad faith based on constructive notice are irrelevant because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). Having said that, the Panel however agrees with Complainant that Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain names – based on the number of Respondent’s domain names similar to Complainant’s trademark - and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under 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 <lockheedmartinsaving.com>, <lockheedmartingsavings.com>, <lockheedmartinsavingsplan.com>, and <lockheedmartinsavins.com> domain names be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: February 26, 2019
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