Lockheed Martin Corporation v. Darkscape Internet Services, Inc.
Claim Number: FA0602000649534
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan Okin Goldsmith, of Duane Morris LLP, 744 Broad Street, Suite 1200, Newark, NJ 07102. Respondent is Darkscape Internet Services, Inc. (“Respondent”), PO Box 2001, Easton, MD 21601.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hdyskunkworks.net>, registered with Bulkregister, Llc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2006.
On February 22, 2006, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <hdyskunkworks.net> domain name is registered with Bulkregister, Llc. and that Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 2, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 22, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hdyskunkworks.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 28, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the SKUNK WORKS mark in connection with Complainant’s high-altitude and high-speed jets.
Complainant first registered the mark with the USPTO on July 14, 1981 (Reg. No. 1,161,482).
Complainant also holds valid trademark registrations for the SKUNK WORKS mark in at least ten other countries.
Complainant holds domain name registrations for more than one hundred domain names containing the SKUNK WORKS mark or variations of the mark.
Substantially all of Complainant’s domain names resolve to a website that provides visitors with information about the mark, as well as Complainant’s licensing and enforcement policies regarding the SKUNK WORKS mark.
Respondent registered the <hdyskunkworks.net> domain name on March 26, 2005.
Complainant has not authorized or licensed Respondent to use its mark.
Respondent is using the disputed domain name to operate a website that links to a server containing files of personal photographs, some of which contain images of aircraft and spacecraft.
Respondent’s <hdyskunkworks.net> domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
Respondent does not have any rights or legitimate interests in the <hdyskunkworks.net> domain name.
Respondent registered and used the <hdyskunkworks.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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."
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(e), 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 (Nat. Arb. 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.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of its SKUNK WORKS mark with the
USPTO establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i). See
VICORP Restaurants, Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum
July 14, 2005): “Complainant has established rights in the BAKERS SQUARE mark
by registering it with the United States Patent and Trademark Office
(“USPTO”).”); see also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003): “Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”
Complainant sufficiently
demonstrates that Respondent’s <hdyskunkworks.net> domain
name is confusingly similar to Complainant’s SKUNK WORKS mark. Respondent’s <hdyskunkworks.net>
domain name incorporates Complainant’s mark in its entirety, adding only the
letters “hdy” and the generic top-level domain “.net.” The addition of these letters to the mark
does not negate the confusing similarity between the Respondent’s disputed
domain name and Complainant’s mark. See Kelson Physician Partners,
Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is
identical or confusingly similar to the complainant’s federally registered
service mark, KELSON); see also
Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24,
2000) (finding that the respondent’s domain name <go2AOL.com> was
confusingly similar to the complainant’s AOL mark). Moreover, the addition of a top-level domain such as “.net” is
irrelevant in determining whether a domain name is identical to a complainant’s
mark. See Isleworth Land Co. v. Lost in Space, SA, FA 117330
(Nat. Arb. Forum Sept. 27, 2002): “[I]t is a well established principle that
generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i)
analysis.” Therefore, the Panel finds
that Respondent’s <hdyskunkworks.net>
domain name is confusingly similar to Complainant’s SKUNK WORKS mark under
Policy ¶ 4(a)(i).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must first demonstrate prima facie that Respondent lacks rights and legitimate interests with respect to the disputed domain name. Once Complainant demonstrates a prima facie case, however, the burden of proof shifts to Respondent to establish that it has rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002): “Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would demostrate its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).” The Panel finds that Complainant has demonstrated a prima facie case, but will nonetheless evaluate the evidence of record to determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts, and Respondent does not deny, that Respondent is using the disputed domain name to operate a website that links to a server offering personal pictures, some of which include images of aircraft and spacecraft. However, Respondent is neither affiliated with Complainant’s business, nor licensed by Complainant to use Complainant’s SKUNK WORKS mark. Consequently, Respondent is using the disputed domain name to redirect Internet users to Respondent’s website, which offers content unrelated to Complainant’s business. Such use by Respondent does not constitute 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). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003): “Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).” See also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003): “Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”
Additionally, the evidence of record does not indicate that Respondent is commonly known by the <hdyskunkworks.net> domain name. Specifically, the WHOIS information demonstrates that Respondent is known as “Darkscape Internet Services, Inc.” Thus, the record does not establish that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that a respondent does not have rights in a domain name when it is not known by the mark).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant holds
valid trademark registrations and has made continuous use of its famous SKUNK
WORKS mark. Moreover, fourteen previous
panels have evaluated Complainant’s rights in the SKUNK WORKS mark, and all
fourteen panels, including two that declined to order the transfer of domain
name registrations to Complainant on other grounds, recognized Complainant’s
rights in the famous and unique SKUNK WORKS mark. See Lockheed Martin
Corp. v. Teramani, D2004-0836
(WIPO Dec. 1, 2004) (holding that the complainant’s SKUNK WORKS mark has
achieved fame and is entitled to broad protection from injury and of its
reputation); see also Lockheed Martin Corp. v. International Fund
Processing, FA 531611 (Nat. Arb.
Forum Sept. 26, 2005) (holding that a respondent cannot be unaware of
Complainant’s SKUNK WORKS mark due to its famous nature).
Respondent has registered and is using a domain name that includes Complainant’s mark to operate a website providing links to personal photographs. The Panel finds that this use of Complainant’s famous mark by Respondent in the <hdyskunkworks.net> domain name constitutes registration and use in bad faith pursuant to Policy ¶ 4(b)(iv) due to the fame of Complainant’s mark. See Via Rail Canada Inc. v. Mean Old Man Prods., AF-0759 (eResolution Apr. 23, 2001): “A strong trademark, where unique because of its coined origins . . . might effectively preclude any legitimate or good faith registration or use of an identical or similar domain name.”
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested shall be GRANTED.
Accordingly, it is Ordered that the <hdyskunkworks.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 10, 2006
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