Lockheed Martin Corporation v. Sam Kadosh
Claim Number: FA1710001751762
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, United States of America. Respondent is Sam Kadosh (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartin.sucks>, registered with Rebel Ltd.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 2, 2017; the Forum received payment on October 2, 2017.
On October 6, 2017, Rebel Ltd confirmed by e-mail to the Forum that the <lockheedmartin.sucks> domain name is registered with Rebel Ltd and that Respondent is the current registrant of the name. Rebel Ltd has verified that Respondent is bound by the Rebel Ltd 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 October 9, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 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@lockheedmartin.sucks. Also on October 9, 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 November 1, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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
Complainant made the following contentions.
Complainant is a global security and aerospace company primarily engaging in research, design, development, manufacturing, integration, and sustainment of advanced technology systems, products and services. Complainant holds several versions of the LOCKHEED and LOCKHEED MARTIN marks with the United States Patent and Trademark Office (“USPTO”) (LOCKHEED—Reg. No. 2,627,156, registered Oct. 1, 2002; LOCKHEED MARTIN—Reg. No. 2,289,019, registered Oct. 26, 1999). See Compl. Ex. D. Respondent’s <lockheedmartin.sucks> is identical to the LOCKHEED MARTIN mark as it incorporates the mark in its entirety and merely adds the generic top-level-domain (“gTLD”) “.sucks.”
Respondent has no rights or legitimate interests in <lockheedmartin.sucks>. Respondent is not commonly known by <lockheedmartin.sucks>. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent’s <lockheedmartin.sucks> resolves to a page containing pay-per-click links. See Compl. Ex. A, B.
Respondent registered and used the <lockheedmartin.sucks> domain name in bad faith. Respondent intentionally creates confusion as to the source of the disputed domain name for Respondent’s commercial gain. Respondent failed to make an active use of the <lockheedmartin.sucks> domain name. Respondent had actual knowledge of Complainant’s rights in the LOCKHEED MARTIN mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company engaged in the global security and aerospace industries.
2. Complainant has established its registered trademark rights in the LOCKHEED and LOCKHEED MARTIN marks with the United States Patent and Trademark Office (‘USPTO”) - (LOCKHEED—Reg. No. 2,627,156, registered Oct. 1, 2002; LOCKHEED MARTIN—Reg. No. 2,289,019, registered Oct. 26, 1999).
3. Respondent registered the <lockheedmartin.sucks> domain name on January 25, 2017.
4. The domain name resolves to an internet page containing pay-per-click links.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has multiple registrations for the LOCKHEED and LOCKHEED MARTIN marks with the USPTO (LOCKHEED—Reg. No. 2,627,156, registered Oct. 1, 2002; LOCKHEED MARTIN—Reg. No. 2,289,019, registered Oct. 26, 1999). See Compl. Ex. D. USPTO registrations are sufficient to show rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds Complainant has rights in the LOCKHEED and LOCKHEED MARTIN marks per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s LOCKHEED or LOCKHEED MARTIN marks. Complainant contends Respondent’s <lockheedmartin.sucks> domain name is identical to the LOCKHEED MARTIN mark as it incorporates the mark in its entirety and merely adds the generic top-level-domain (“gTLD”) “.sucks.” Similar changes to a mark have been found insufficient to defeat a test for identicalness pursuant to Policy ¶ 4(a)(i). See SCOLA v. Wick, FA 1115109 (Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”). Here, Respondent has added the gTLD “.sucks” to Complainant’s wholly incorporated mark. The Panel therefore agrees with Complainant and finds Respondent’s <lockheedmartin.sucks> domain name to be identical to Complainant’s LOCKHEED MARTIN mark.
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s LOCKHEED MARTIN mark and has used it in its entirety in the domain name, adding only the generic top- level-domain “.sucks”;
(b) Respondent has caused the disputed domain name to resolve to a page containing pay-per-click links;
(c) Respondent has engaged in these activities without the consent or approval of Complainant;
(d)Complainant argues Respondent is not commonly known by the <lockheedmartin.sucks> domain name. In lieu of a Response, WHOIS information can substantiate a claim that a respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, WHOIS identifies the registrant of <lockheedmartin.sucks> as “Sam Kadosh / Sam Kadosh.” See Compl. Ex. A. Where WHOIS information appears to denote that a respondent is commonly known by a disputed domain name, affirmative evidence is required to determine if said respondent was commonly known by the disputed domain name before registration thereof. See Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”). The Panel notes that Respondent failed to submit a Response in this proceeding and, as such, finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(e) Complainant submits Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name as Respondent hosts pay-per-click links on the resolving webpage of the disputed domain name. Use of a disputed domain name to host and benefit from pay-per-click links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of goods or services). Here, Complainant submits Respondent hosts links related and unrelated to Complainant’s business for Respondent’s commercial gain. See Compl. Ex. B, C. The Panel agrees with Complainant and finds Respondent lacks rights and legitimate interests in the <lockheedmartin.sucks> domain name.
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant submits Respondent intentionally creates confusion as to the source of the disputed domain name for Respondent’s commercial gain. Use of a disputed domain name to impersonate a complainant and send fraudulent emails demonstrates bad faith per Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)). Here, Complainant argues Respondent appropriates Complainant’s LOCKHEED MARTIN mark to host pay-per-click links for Respondent’s commercial gain. See Compl. Ex. B, C. The Panel agrees with Complainant and finds Respondent used the <lockheedmartin.sucks> domain name in bad faith per Policy ¶ 4(b)(iv).
Secondly, Complainant contends Respondent failed to make an active use of the <lockheedmartin.sucks> domain name. Failure to make an active use of a disputed domain name can evince a finding that a respondent registered and used said domain name in bad faith per 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).”). Complainant submits Respondent has made no active use of the disputed domain name since registration. See Compl. Ex. B. The Panel agrees with Complainant and finds Respondent registered and used the <lockheedmartin.sucks> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Thirdly, Complainant contends Respondent had actual knowledge of Complainant's rights in the LOCKHEED MARTIN mark prior to registering the domain name. Actual knowledge of a complainant’s rights in a mark prior to registration of a domain name containing said mark can evince a finding of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent must have had actual knowledge of the LOCKHEED MARTIN mark based upon Respondent’s full use of the mark in registering the domain name and the fame associated with the mark. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the LOCKHEED MARTIN mark and in view of the conduct that Respondent engaged in when using it, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedmartin.sucks> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: November 2, 2017
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