Lockheed Martin Corporation v. hanil chemical industry
Claim Number: FA1803001775506
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E. Bro of McDermott Will & Emery LLP, California, USA. Respondent is hanil chemical industry (“Respondent”) South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartin-comsat.net>, registered with Network Solutions, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 12, 2018; the Forum received payment on March 12, 2018.
On March 14, 2018, Network Solutions, LLC confirmed by e-mail to the Forum that the <lockheedmartin-comsat.net> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 March 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2018 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-comsat.net. Also on March 15, 2018, 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 April 6, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 is a global security and aerospace company engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems and related products and services.
Complainant holds a registration for the LOCKHEED MARTIN service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,022,037, registered December 10, 1996, and most recently renewed January 18, 2017.
Respondent registered the domain name <lockheedmartin-comsat.net> on December 21, 2017.
The domain name is confusingly similar to Complainant’s LOCKHEED MARTIN service mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the LOCKHEED MARTIN mark in any manner.
Respondent’s use of the domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, the domain name resolves to an inactive web page.
Respondent has no rights to or legitimate interests in the domain name.
Respondent registered the domain name to trade off the reputation and goodwill of Complainant’s mark.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the LOCKHEED MARTIN service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration of a mark with the USPTO was sufficient to establish a UDRP complainant’s rights in that mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here South Korea). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <lockheedmartin-comsat.net> domain name is confusingly similar to the Complainant’s LOCKHEED MARTIN service mark. The domain name incorporates the mark in its entirety, and merely eliminates the space between the terms of the mark while adding the term “comsat,” which relates to an aspect of Complainant’s business, plus a hyphen, and the generic Top Level Domain (“gTLD”) “.net.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Microsoft Corp. v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding that confusing similarity existed where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic or descriptive phrase and a gTLD, the differences between the domain name and the appropriated mark being insufficient to distinguish one from the other for purposes of the Policy).
See also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (determining that the addition of a hyphen to a UDRP complainant’s mark in creating a domain name did not sufficiently distinguish that domain name from the mark).
Further see Gianvito Rossi SRL Unipersonale v. david backhumn, FA 1628059 (Forum August 12, 2015), finding that:
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).
Finally see Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to the mark of another in crafting a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <lockheedmartin-comsat.net> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <lockheedmartin-comsat.net> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the LOCKHEED MARTIN mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “hanil chemical industry,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent’s <lockheedmartin-comsat.net> domain name is not actively used, but instead resolves to an inactive web page. Inactive holding of a disputed domain name, particularly where, as here, the inactivity has lasted for an extended period, demonstrates that the domain name is not being used in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in it within the meaning of the Policy. See Kohler Co. v xi long chen, FA 1737910 (Forum August 4, 2017):
Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s … [domain name] … resolves to an inactive webpage displaying the message “website coming soon!”
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
For essentially the same reason that Respondent’s extended inactive holding of the <lockheedmartin-comsat.net> domain name shows that Respondent has neither rights to nor legitimate interests in it, that same fact demonstrates that Respondent has both registered and now uses it in bad faith. 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).
Moreover, it is evident from the record that Respondent knew of Complainant and of its rights in the LOCKHEED MARTIN mark when it registered the <lockheedmartin-comsat.net> domain name. Under Policy ¶ 4(a)(iii), this stands as proof of Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014):
The Panel … here finds actual knowledge [and, therefore, bad faith registration] through the name used for the domain and the use made of it.
The panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <lockheedmartin-comsat.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 17, 2018
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