Lockheed Martin Corporation v. Cao Wo c/o Wocao
Claim Number: FA0609000808343
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan
Okin Goldsmith, of Duane Morris LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <lockheedsmartin.com>, registered with Hichina Web Solutions (Hong Kong) Limited.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 29, 2006. The Complaint was submitted in both Chinese and English.
On October 7, 2006, Hichina Web Solutions (Hong Kong) Limited confirmed by e-mail to the National Arbitration Forum that the <lockheedsmartin.com> domain name is registered with Hichina Web Solutions (Hong Kong) Limited and that Respondent is the current registrant of the name. Hichina Web Solutions (Hong Kong) Limited has verified that Respondent is bound by the Hichina Web Solutions (Hong Kong) Limited 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 October 13, 2006, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 2, 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@lockheedsmartin.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lockheedsmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <lockheedsmartin.com> domain name.
3. Respondent registered and used the <lockheedsmartin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin
Corporation, has continuously used the LOCKHEED MARTIN mark since at least as
early as 1995 in connection with its offering of aeronautics, electronics
systems, information and technology services, integrated systems and solutions
and space systems, and other related goods and services. Complainant holds numerous trademark
registrations for the LOCKHEED MARTIN mark with the United States Patent and
Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037 issued December 10,
1996). Complainant also holds trademark
registrations for the LOCKHEED MARTIN mark in
Respondent, Cao Wo c/o Wocao, registered the <lockheedsmartin.com> domain name on November 7, 2005. Respondent’s disputed domain name currently does not resolve to a server.
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.
Complainant has provided evidence of trademark registrations for the LOCKHEED MARTIN mark with the USPTO, as well as registrations in the jurisdiction in which Respondent resides. As a result, the Panel finds that Complainant’s trademark registration for LOCKHEED MARTIN sufficiently demonstrates Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (“Complainant has submitted evidence of its registration of the AOL mark with the USPTO. The Panel finds that such evidence establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)… .”).
Furthermore, the Panel finds that Respondent’s <lockheedsmartin.com> domain name is
confusingly similar to Complainant’s registered LOCKHEED MARTIN mark for
purposes of Policy ¶ 4(a)(i).
Respondent’s <lockheedsmartin.com>
domain name consists of Complainant’s LOCKHEED MARTIN mark, with the addition
of the letter “s” between the terms of the mark, the omission of a space
between the terms, and the addition of the generic top-level domain (“gTLD”)
“.com.” Prior panels have held that a
domain name that misspells a complainant’s mark by merely adding a single
letter does not avoid the creation of confusing similarity between the
resulting domain name and the complainant’s mark. See Barnesandnoble.com LLC v. Your
One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that
the <barnesandnobles.info> and <barnesandnobles.biz> domain names
are confusingly similar to the complainant’s BARNESANDNOBLE.COM mark because
the additions of the letter “s” and generic top-level domains to the dominant
features of the complainant’s mark do not negate the confusingly similar
aspects of the domain names pursuant to Policy ¶ 4(a)(i)); see also Computerized
Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding
that the addition of the letter “c” to the complainant’s SAFLOK mark does not
distinguish the <saflock.com> domain name from the mark under Policy ¶
4(a)(i)). Moreover, panels have
consistently held that the omission of spaces between the terms of a mark and
the addition of a gTLD do not sufficiently distinguish a domain name from a
mark pursuant to Policy ¶ 4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant initially bears the burden of establishing that Respondent lacks rights or legitimate interests with respect to the disputed domain name. Nevertheless, once Complainant establishes a prima facie case, the burden shifts, and Respondent must establish that it has rights or legitimate interests in connection with the disputed domain name in accord with Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the 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 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.”). The Panel finds that Complainant has sufficiently demonstrated a prima facie case and will evaluate the evidence on record to determine whether Respondent has any rights or legitimate interests with respect to the disputed domain name under Policy ¶ 4(c).
The Panel finds that Respondent is currently not making any use of the <lockheedsmartin.com> domain name. As a result, the Panel concludes that Respondent has failed to engage in a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use in accord with Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s failure to actively use the disputed domain names demonstrates that the respondent is not using the disputed domain names for 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 also Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the respondent made no use of the infringing domain names); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that the respondent had not established any rights or legitimate interests in the domain name).
Furthermore, the evidence on record does not establish that Respondent is commonly known by the <lockheedsmartin.com> domain name in accord with Policy ¶ 4(c)(ii). Complainant asserts that Respondent is not affiliated with Complainant, and is not licensed or otherwise authorized by Complainant to use the LOCKHEED MARTIN mark. Additionally, Respondent’s WHOIS information indicates that it is known as “Cao Wo c/o Wocao.” Therefore, the Panel concludes that the evidence on record fails to establish that Respondent is commonly known by the <lockheedsmartin.com> domain name under Policy ¶ 4(c)(ii). 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 Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent is not commonly known by the <shoredurometer.com> or <shoredurometers.com> domain names where the WHOIS information indicates the registrant of the domain names as “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t,” and no other evidence suggests that the respondent is commonly known by the domain names).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s <lockheedsmartin.com> domain name does not resolve to an active website. Furthermore, Respondent has failed to submit evidence of demonstrable preparations to use the disputed domain name. As a result, the Panel finds that Respondent’s failure to use the disputed domain name amounts to bad faith registration and use pursuant to policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) 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 <lockheedsmartin.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 21, 2006
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