Lockheed Martin Corporation v. Jeff Hoffman
Claim Number: FA0612000874152
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Susan
Okin Goldsmith, of Duane Marris LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <nuanceskunkworks.com>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2007 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@nuanceskunkworks.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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:
1. Respondent’s <nuanceskunkworks.com> domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
2. Respondent does not have any rights or legitimate interests in the <nuanceskunkworks.com> domain name.
3. Respondent registered and used the <nuanceskunkworks.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, is the owner of the SKUNK WORKS mark, which is registered in numerous foreign jurisdictions and with the United States Patent and Trademark Office (“USPTO”) (including, but not limited to, Reg. No. 1,161,482, issued July 14, 1981, and Reg. No. 2,652,258 issued November 19, 2002). The SKUNK WORKS mark has been in continuous use in commerce by Complainant and its predecessors in interest since the mid-1940s. Complainant owns approximately two hundred domain names incorporating the SKUNK WORKS mark or a phonetic variant of the mark, including <skunkworks.com>, <guitarskunkworks.com>, and <germanskunkwerks.com>.
Respondent, Jeff Hoffman, registered the disputed <nuanceskunkworks.com>
domain name on
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 established rights in the SKUNK WORKS mark
pursuant to Policy ¶ 4(a)(i) through registration of the mark with the
USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum
In registering its <nuanceskunkworks.com> domain name, Respondent merely added the generic term “nuance” to Complainant’s entire SKUNK WORKS mark. Respondent made no further attempt at distinguishing the domain name from the famous SKUNK WORKS mark. Such action is insufficient for purposes of avoiding a finding of confusing similarity under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term).
The Panel finds that Complainant has satisfied Policy ¶
4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed <nuanceskunkworks.com> domain name. Provided Complainant makes a prima facie case under Policy ¶ 4(a)(ii), Respondent then bears the burden of rebutting this presumption. 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”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
In connection with registering the
disputed <nuanceskunkworks.com> domain name, Respondent initially
utilized a proxy registrant, Domains by Proxy.
Presumably this method of registration was motivated either by
Respondent’s concern for protecting his privacy or by Respondent’s desire to
conceal his true identity. In any event,
listing a proxy registrant or himself as the registrant is inconsistent with an
assertion that Respondent is commonly known by the disputed <nuanceskunkworks.com>
domain name. While the record clearly indicates that Respondent
performed this mandatory and perfunctory task of registration, it is void of
any other attempt by Respondent to establish that he is commonly known by the
disputed domain name, or any variation thereof.
Indeed, given the fame and notoriety of Complainant’s SKUNK WORKS mark,
Respondent must put forth strong evidence to prevail on this argument. See G.D.
Searle & Co. v. Cimock, FA 126829
(Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong
evidence that Respondent is commonly known by the disputed domain name in order
to find that Respondent has rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c)(ii).”).
This has simply not been done here. As such, Respondent has no rights or
legitimate interests under Policy ¶ 4(c)(ii).
See Am. W. Airlines, Inc. v.
Paik, FA 206396 (Nat. Arb. Forum
Similarly, the record here is void of any attempt by Respondent
to use the <nuanceskunkworks.com> domain name in a legitimate
noncommercial or fair manner under Policy ¶ 4(c)(iii), or in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i). As of the filing date of the instant
complaint, Respondent has not even setup a web page in connection with the
disputed domain name. At least one Panel
has held that when the respondent declares such intent to develop a website, “[Policy
¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such
preparations to use the domain name, and 2) that such preparations were
undertaken ‘before any notice to [Respondent] of the dispute.’” Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO
Here, the disputed <nuanceskunkworks.com>
domain name merely resolves to a generic placeholder offering no substantive
content. This placeholder page has
remained unchanged since being posted on or around
The Panel finds that
Complainant’s assertion that Respondent lacks rights or legitimate interests in
the disputed domain name constitutes a prima facie case pursuant to the
Policy. In
light of the foregoing analysis, the Panel finds that Respondent has failed to
show any rights or legitimate interests in the disputed domain name under
Policy ¶ 4(c). As such, Complainant has
satisfied policy ¶ 4(a)(ii).
Respondent’s bad faith in the instant case is axiomatic when considering Respondent’s non-use of the disputed <nuanceskunkworks.com> domain name, his failure to develop the site in any substantive manner, and the reasonable inference that Respondent only chose the disputed domain name in an effort to capitalize on Complainant’s goodwill associated with its SKUNK WORKS mark. See TV Globo Ltd. v. Globoesportes.com, D2000-0791 (WIPO Sept. 12, 2000) (finding bad faith where (1) the domain name in dispute is obviously connected with a well-known mark, (2) the respondent deliberately chose a domain name which is the mark of the largest TV operator in the world’s largest Portuguese speaking country, and (3) the respondent failed to develop the site); see also E. & J. Gallo Winery v. Oak Inv. Group, D2000-1213 (WIPO Nov. 12, 2000) (finding bad faith where (1) the respondent knew or should have known of the complainant’s famous GALLO marks and (2) the respondent made no use of the domain name <winegallo.com>). In fact, the failure to use a domain name may, in and of itself, establish bad faith under the Policy. 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 DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Taking into account all of the facts and circumstances presented by the record, the Panel finds that Complainant has shown that Respondent’s conduct falls within Policy ¶ 4(b) and has thus satisfied the requirements of 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 <nuanceskunkworks.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 31, 2007
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