Lockheed Martin Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1904001837567
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”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 5, 2019; the Forum received payment on April 5, 2019.
On April 8, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.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 April 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 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@locheedmartinsavings.com, postmaster@wwwlockheedmartinsavings.com, postmaster@lockhheedmartinsavings.com. Also on April 9, 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.
On April 30, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is the world’s largest defense contractor and a global security and aerospace company, employing 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”).
Respondent’s <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN mark because Respondent merely adds the generic term “savings” on the end with the non-distinguishing “.com” generic top level domain (“gTLD”) to the mark. Additionally, the <locheedmartinsavings.com> domain name removes the letter “k” in LOCKHEED; the <wwwlockheedmartinsavings.com> domain name adds the “www” prefix; and finally, the <lockhheedmartinsavings.com> domain name adds an additional “h” to the mark.
Respondent has no rights or legitimate interests in the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names. Respondent is not authorized to use Complainant’s LOCKHEED MARTIN mark and is not commonly known by the disputed domain names. Additionally, Respondent does not use the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names to make a bona fide offering of goods or services or a legitimate non-commercial or fair use. Instead, the disputed domain names are set up to distribute malware. Lastly, because the <locheedmartinsavings.com> domain is formed using the LOCKHEED MARTIN marks in their entirety, only eliminating the “k” in “Lockheed”; the <wwwlockheedmartinsavings.com> domain adds the prefix “www”; and the <lockhheedmartinsavings.com> domain adds an additional “h” in “Lockheed,” Respondent has engaged in typosquatting.
Respondent registered and uses the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names in bad faith. Respondent offers the disputed domain names for sale at prices in excess of its out-of-pocket costs. Respondent further has engaged in a pattern of bad faith registration as (1) registered the domain names within 10 days of each other, and (2) has an adverse UDRP history. Additionally, Respondent uses the disputed domain names to distribute malware. Respondent also fails to actively use the disputed domain names. Furthermore, Respondent’s registration of the disputed domain names constitutes typosquatting and Respondent registered the domain names with a privacy service and false contact information. Finally, Respondent was well-aware of Complainant’s rights in the LOCKHEED MARTIN mark due to Complainant’s extensive, global use and fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the LOCKHEED MARTIN mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the LOCKHEED MARTIN mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names to distribute malware.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Each at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the LOCKHEED MARTIN trademark evidences its rights in such mark for the purposes of Policy ¶ 4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, the at-issue domain names contain Complainant’s entire LOCKHEED MARTIN trademark less its space and in two cases the trademark is also blatantly misspelled. In each domain name, Complainant’s trademark is followed by the term “saving” and then followed by the top-level domain name “.com.” One domain name also prefixes Complainant’s trademark with the URL related term “www.” The differences between the at-issue domain names and Complainant’s LOCKHEED MARTIN trademark are insufficient to distinguish any at-issue domain name from the Complainant’s mark for the purpose of the Policy. Therefore, the Panel finds that pursuant to Policy ¶4(a)(i) that the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names are each confusingly similar to Complainant’s LOCKHEED MARTIN trademark. 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, 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 Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (“Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of each 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 any of the at‑issue domain names.
WHOIS information for the at-issue domain names identifies the domain names’ registrant as “Carolina Rodrigues / Fundacion Comercio Electronico” and the record contains no evidence that otherwise tends to prove that Respondent is commonly known by either <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, or <lockhheedmartinsavings.com>. The Panel therefore concludes that Respondent is not commonly known by <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, or <lockhheedmartinsavings.com> for the purposes of Policy ¶ (c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com>domain names to direct internet users to website(s) that have been flagged to present a malware threat. Using the domain names in to distribute malware 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). See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain names were each registered and used in bad faith. As discussed below without limitation Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4 (a)(iii) of the Policy regarding each domain name.
First, Respondent registered and used the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names to offer them for sale. Complainant shows that each at-issue domain name is being offered for sale for $500. Respondent’s offering the domain names for sale for an amount in excess of out-of-pocket costs is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Lyon v. Casserly, FA 193891 (Forum Oct. 29, 2003) (finding that the domain name was acquired primarily for the purpose of transferring the domain name to the complainant for valuable consideration in excess of the respondent's out-of-pocket costs because the respondent made various requests for concert tickets, backstage passes, press passes and a website development contract).
Next, Respondent registered the three trademark laden at-issue domain names within a two week period. Further, Respondent has suffered more than 60 adverse UDRP decisions. Respondent’s history of registering and using domain names that infringe the rights of others indicates a pattern of bad faith and evidences Respondent’s bad faith in the instant case under Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)); see also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Moreover and as mentioned above regarding rights and legitimate interests, Respondent uses the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names to distribute malware. Use of the confusingly similar domain names for such purpose demonstrates bad faith registration and use 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).”).
Finally, Respondent registered the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names knowing that Complainant had trademark rights in LOCKHEED MARTIN. Respondent’s prior knowledge is evident from the notoriety of Complainant’s LOCKHEED MARTIN trademark. It is thus clear that Respondent intentionally registered the at-issue domain names to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <locheedmartinsavings.com>, <wwwlockheedmartinsavings.com>, and <lockhheedmartinsavings.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 1, 2019
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