Lockheed Martin Corporation v. stephen Crapia
Claim Number: FA1709001750802
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, California, USA. Respondent is stephen Crapia (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skunkworksrx.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 26, 2017; the Forum received payment on September 26, 2017.
On September 27, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <skunkworksrx.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 September 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 2017 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@skunkworksrx.com. Also on September 28, 2017, 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 October 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant’s trademark registrations and its common law rights pertain to goods and services relating to manufacturing, product design, research, engineering technical consulting, and advisory services with respect to designing, building, equipping, and testing commercial and military aircraft and related equipment, as well as a wide variety of goods and services related thereto.
2. Complainant registered the SKUNK WORKS mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,511,053, registered Nov. 20, 2001). Respondent’s <skunkworksrx.com>[1] domain name is nearly identical or confusingly similar to Complainant’s mark as it incorporates Complainant’s entire mark, less the space, and adds the letters “rx” along with the generic top-level domain (“gTLD”) “.com.”
3. Respondent has no rights or legitimate interests in the <skunkworksrx.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the SKUNK WORKS mark.
4. Respondent also does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, for over 6 months, Respondent has been using the domain name for a website that promotes other commercial websites, because the domain name has always resolved to a website that provides various sponsored click-through links, which direct Internet users to third-party commercial websites. Further, Respondent clearly chose the domain name to trade off of the reputation and goodwill associated with Complainant’s mark.
5. Respondent registered and uses the <skunkworksrx.com> domain name in bad faith.
6. Respondent has registered the domain name with the intent to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website, thereby diverting Internet traffic from Complainant’s website to Respondent’s website for commercial gain. Respondent creates this confusion to redirect Internet users to commercial websites where Respondent provides various sponsored click-through links that direct to third-party commercial websites.
7. Finally, Respondent has owned the domain name for six months and has failed to make any developments on the website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SKUNK WORKS mark. Respondent’s domain name is confusingly similar to Complainant’s SKUNK WORKS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <skunkworksrx.com> domain name and that Respondent registered and uses the domain name 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."
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 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 (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.”).
Complainant registered the SKUNK WORKS mark with the USPTO (e.g. Reg. No. 2,511,053, registered Nov. 20, 2001). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the SKUNK WORKS mark.
Complainant next argues that Respondent’s <skunkworksrx.com> domain name is confusingly similar to Complainant’s mark as it incorporates Complainant’s entire mark, less the space, and adds the letters “rx” along with the gTLD “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Gianvito Rossi SRL Unipersonale v. david backhumn, FA 1628059 (Forum Aug. 12, 2015) (declaring, “Domain name syntax prohibits spaces in a domain name, so their absence must be disregarded when comparing a mark with a disputed domain name under Policy ¶4(a)(i).”); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (confusing similarity exist where domain name contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <skunkworksrx.com> domain name is confusingly similar to the SKUNK WORKS mark under Policy ¶4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <skunkworksrx.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“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 holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <skunkworksrx.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “stephen Crapia” as the registrant. Complainant alleges, without contradiction, that Respondent has never been legitimately affiliated with Complainant, has never been known by the <skunkworksrx.com> domain name prior to its registration, and Complainant has not given Respondent permission to use the domain name. Accordingly, the record supports Complainant’s assertions that Respondent is not commonly known by the <skunkworksrx.com> domain name under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant also argues that Respondent has been using the domain name for a website that promotes other commercial websites, since the domain name has always resolved to a website that provides various sponsored click-through links, which direct Internet users to third-party commercial websites. Using a domain name to offer links to third-party services fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides screenshots of the website on various dates, and some of the links displayed on the site have been “Skunk Removal,” “A Skunk,” and “Skunk Trap.” Accordingly, the Panel holds that Respondent has failed to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) of the <skunkworksrx.com> domain name.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <skunkworksrx.com> domain name with the intent to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Using the <skunkworksrx.com> domain name to disrupt Complainant’s business and trades upon the goodwill of Complainant for commercial gain shows bad faith under Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained. Accordingly, the Panel agrees that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant has shown that Respondent has owned the domain name for six months and has failed to make any developments on the website. Inactively holding a confusingly similar domain name is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel agrees that Respondent registered and uses the disputed domain name in bad faith.
The Panel finds Complainant has satisfied 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 <skunkworksrx.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: October 30, 2017
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