Lockheed Martin Corporation v. Mohd Rahim
Claim Number: FA0609000806821
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 Mohd Rahim (“Respondent”), KHTP, Kulim, Kedah 09000 Malaysia.
REGISTRAR AND DISPUTED DOMAIN
NAME(s)
The domain name at issue is <skunkwerks.us>, registered with Go Daddy Software, Inc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 27, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 28, 2006.
On September 28, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <skunkwerks.us> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On September 28, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 18, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 25, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 makes the following assertions:
1. Respondent’s <skunkwerks.us> domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
2. Respondent does not have any rights or legitimate interests in the <skunkwerks.us> domain name.
3. Respondent registered and used the <skunkwerks.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, is an internationally leading manufacturer of aviation products. In connection with these products, Complainant has registered a number of trade and service marks including the SKUNK WORKS mark, which has been registered with the United States Patent and Trademark Office (“USPTO”)(Reg. No. 1,161,482 issued July 14, 1981). Complainant’s SKUNK WORKS mark represents the goodwill associated with the birthplace of many famous aircraft. It also has been used to identify the source of other technical services and products.
Respondent registered the <skunkwerks.us> domain name August 4, 2005. Respondent’s domain name resolves to the Respondent’s general directory site and has been placed for sale at auction.
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:
(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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Complainant has established rights in the SKUNK WORKS mark through registration of the mark with the USPTO. The Panel finds that Complainant’s extensive use of the SKUNK WORKS mark for twenty-five years is sufficient to establish rights pursuant to Policy ¶ 4(a)(ii). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”).
Complainant contends that Respondent’s <skunkwerks.us> domain name is confusingly similar to Complainant’s SKUNK WORKS mark. The replacement of the letter “o” with the letter “e” creates a domain name that is phonetically identical and confusingly similar to Complainant’s mark. The addition of the “.us” top-level domain name fails to add any distinguishing characteristic to the disputed domain name. The Panel finds that the <skunkwerks.us> domain name is phonetically equivalent and confusingly similar to Complainant’s SKUNK WORKS mark pursuant to Policy ¶ 4(a)(ii). See Pfizer Inc. v. Phizer's Antiques, D2002-0410 (WIPO July 3, 2002) (finding the <phizer.com> domain name phonetically equivalent and confusingly similar to the PFIZER mark); see also Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent lacks all rights or legitimate interests in the <skunkwerks.us> domain name. In instances where Complainant has made a prima facie case under Policy ¶ 4(a)(iii), the burden shifts to Respondent to set forth concrete evidence that it does possess 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, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
Complainant has established its rights to the SKUNK WORKS mark, and asserts without contradiction that Respondent is not the owner of the SKUNK WORKS mark. The Panel finds that there is no available evidence that Respondent is the owner or beneficiary of a trade or service mark that is identical to the <skunkwerks.us > domain name as required by Policy ¶ 4(c)(i). See Meow Media Inc. v. John Basil a/k/a American Software Factory Corp., Inc., FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that Respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.com> domain name); see also Pepsico, Inc. v. Becky a/k/a Joe Cutroni, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to UDRP ¶ 4(c)(i)).
Respondent is not using the <skunkwerks.us> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use as required by Policy ¶¶ 4(c)(ii) and (iv). Respondent is using the disputed domain name to redirect Internet users to its website which is a general directory of websites. Presumably, Respondent receives pay-per-click referral fees from those links. The Panel finds that such use is not within the scope contemplated by Policy ¶¶ 4(c)(ii) and (iv), and thus, does not indicate that Respondent has rights or legitimate interests in the disputed domain name. See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that the respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to the complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Complainant contends that Respondent is neither commonly known by the <skunkwerks.us> domain name nor authorized to register domain names featuring Complainant’s SKUNK WORKS mark in any way. In the absence of evidence suggesting otherwise, the Panel finds that Respondent has not established rights or legitimate interests in accordance with Policy ¶ 4(c)(iii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant contends that Respondent’s placement of the disputed domain name on an auction website, rather than to seize the opportunity to relinquish or transfer the disputed domain name to Complainant constitutes bad faith. The Panel finds that the placement of the disputed domain name on an auction site constitutes bad faith pursuant to Policy ¶ 4(a)(iv). See Wrenchead.com, Inc. v. Hammersla, D2000-1222 (WIPO Dec. 12, 2000) (finding that offering the domain name for sale at an auction site is evidence of bad faith registration and use); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding the respondent's offer to sell the domain name at issue to the complainant was evidence of bad faith).
The disputed domain name currently resolves to the
Respondent’s general directory website.
The Panel finds that the use of the disputed domain name to redirect
users to the Respondent’s general directory website evinces bad faith pursuant
to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp.,
FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the
respondent registered and used a domain name confusingly similar to the
complainant’s mark to attract users to a website sponsored by the respondent); see
also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb.
Forum Nov. 21, 2002) (finding that the respondent registered and used the
domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent
was using the confusingly similar domain name to attract Internet users to its
commercial website).
The Panel finds that Policy ¶ 4(a)(iv) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skunkwerks.us> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 7, 2006
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