DECISION

 

Lockheed Martin Corporation v. J. Chang / A.I. Domains, LLC

Claim Number: FA1804001780110

PARTIES

Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E. Bro of McDermott Will &  Emery LLP, California, USA.  Respondent is J. Chang / A.I. Domains, LLC (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lockheedmartin.ai>, registered with 101domain GRS Limited.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on April 2, 2018; the Forum received payment on April 2, 2018.

 

On April 4, 2018, 101domain GRS Limited confirmed by e-mail to the Forum that the <lockheedmartin.ai> domain name is registered with 101domain GRS Limited and that Respondent is the current registrant of the name.  101domain GRS Limited has verified that Respondent is bound by the 101domain GRS Limited 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 April 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 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.ai.  Also on April 9, 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 May 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Lockheed Martin Corporation, is a global security and aerospace company that employs approximately 100,000 people worldwide and is principally engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products and services. Complainant owns worldwide registrations for its LOCKHEED MARTIN mark. See Compl. Ex. D. Respondent’s disputed domain name is confusingly similar to Complainant’s mark as the domain name incorporates the entire LOCKHEED MARTIN mark and merely adds the “.ai” country code top-level domain (“ccTLD”), which is in direct reference to Complainant’s research and development services in relation to Artificial Intelligence. See Compl. Ex. E.

2.    Respondent has no rights or legitimate interests in the disputed domain name. Further, Respondent is not commonly known by the disputed domain name as Complainant has never granted license or permission to Respondent for the use of its mark. Respondent does not use the at issue domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead Respondent is using the disputed domain name to host a website that promotes other commercial links and websites. See Compl. Ex. B. Further the at issue domain name currently resolves to a website that provides various sponsored click-through-links, which direct internet users to additional search pages or third-party commercial websites, including websites hosting adult-oriented content. Id. Respondent’s activities also constitute passing off.

3.    Respondent registered and used the at issue domain name in bad faith as Respondent is creating a likelihood of confusion with Complainant’s mark for commercial gain. Respondent commercially benefits from the domain name through the accrual of click-through fees from third party links. Further, Respondent failed to use or develop the at issue domain name which demonstrates bad faith.

 

B.   Respondent

1.            Respondent did not submit a Response.

 

FINDINGS

1.    Respondent’s <lockheedmartin.ai> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.

2.    Respondent does not have any rights or legitimate interests in the <lockheedmartin.ai> domain name.

3.    Respondent registered or used the <lockheedmartin.ai> domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights to its LOCKHEED MARTIN mark through worldwide registrations. See Compl. Ex. D. Worldwide registrations of a mark with various trademark organizations is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). Accordingly, the Panel may find Complainant has demonstrated rights to its mark per Policy ¶ 4(a)(i).

 

Next, Complainant argues Respondent’s <lockheedmartin.ai> domain name is confusingly similar to its mark as the domain name incorporates the entire LOCKHEED MARTIN mark and adds the ccTLD “.ai,” which Complainant asserts is in direct reference to Complainant’s research and development services in relation to Artificial Intelligence. See Compl. Ex. E. Similar changes have been found insufficient in an analysis for the identical nature of the disputed domain name to the mark it incorporates per Policy ¶ 4(a)(i). See Audigier Brand Mgmt. Grp., LLC v. bai wentao, FA 1286108 (Forum Nov. 16, 2009) (holding that even after the “addition of a ccTLD the disputed domain name is still identical to Complainant’s mark.”); see also Cards Against Humanity, LLC v. sri winarti, FA 1736823 (Forum July 31, 2017) (“The Panel therefore finds Respondent’s <cardsagainsthumanity.us> to be identical to Complainant’s CARDS AGAINST HUMANITY mark.”). Complainant asserts, although the “.ai” ccTLD is for Anguilla, a small island nation in the Caribbean Sea, recent registration of domain names with the “.ai” ccTLD appear to have been adopted by those in the Artificial Intelligence technology space. See Compl. Ex. I. The Panel may thus find Respondent’s <lockheedmartin.ai> domain name to be identical to Complainant’s LOCKHEED MARTIN marks per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues Respondent has no rights or legitimate interests in the disputed domain name. Further, Complainant avers, Respondent is not commonly known by the disputed domain name. Per Policy ¶ 4(c)(ii), a respondent may not be commonly known by a disputed domain name where a complainant has never granted license or permission to respondent for the use of its mark. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Here, Complainant indicates it has never granted license or permission to Respondent for the use of its mark. Accordingly, the Panel may find Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Next, Complainant contends Respondent does not use the <lockheedmartin.ai> domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Complainant avers, Respondent is using the disputed domain name to host a website that promotes other commercial links and websites. See Compl. Ex. B. Such uses of a domain name are typically not in accordance with Policy ¶¶ 4(c)(i) and (iii). See SimScale GmbH v. Oliver Sharp, FA1401001537384 (Forum Feb. 3, 2014) (holding that the respondent’s “use of the disputed domain name to promote links to unrelated third parties is not protected as 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).”); see also Dipaolo v. Genero, FA 203168 (Forum Dec. 6, 2003) (“Diversion to [adult-oriented material] is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶¶ 4(c)(i) and (iii).”). Complainant provides screenshot evidence of the resolving website for the disputed domain name which currently resolves to a website that provides various sponsored click-through-links, which directs internet users to additional search pages or third-party commercial websites, including websites hosting adult-oriented content. See Compl. Ex. B. Consequently, the Panel finds Respondent’s uses are not in accordance with Policy ¶¶ 4(c)(i) and (iii).

 

In addition, Complainant avers, Respondent’s activities also constitute passing off, in that Respondent is trying to pass off as Complainant—a company known around the world as a provider of advanced technologies and systems such as Artificial Intelligence or “AI,” as referenced by the “.ai” ccTLD. Passing off has been held to demonstrate a lack rights under Policy ¶¶ 4(c)(i) and (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). As a result, the Panel finds Respondent’s activities constitute passing off which does not give rights or legitimate interests in a domain name per Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant claims that Respondent commercially benefits by offering advertisements on the resolving webpage for the <lockheedmartin.ai> domain name. Commercially benefitting by offering advertisements can evince bad faith registration and use under Policy ¶ 4(b)(iv). See Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum April 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”). Complainant indicates, Respondent commercially benefits from the domain name at issue through the accrual of click-through fees from third party links. See Compl. Ex. B. The Panel agrees with Complainant’s contentions and finds that Respondent acted in bad faith when registering and using the disputed domain name.

 

Last, Complainant asserts Respondent registered and used the disputed domain name in bad faith as Respondent failed to make a use of the domain name. Failure to use or develop a domain name can evince bad faith per Policy ¶ 4(a)(iii). See Microsoft Corporation v. Jordin Barth, FA1211001473274 (Forum Jan. 14, 2013) (finding that the respondent’s failure to make an active use of the disputed domain name from the time it was registered until the time it was contacted by the complainant’s counsel indicated that the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)). Here, Complainant avers Respondent has owned the at issue domain name for over three months and Respondent has failed to use the domain name during that time frame for any legitimate purpose. As a result, the Panel finds Respondent has registered and used the <lockheedmartin.ai> domain name in bad faith.

 

DECISION

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.ai> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  May 15, 2018