Lockheed Martin Corporation v. John Neenan
Claim Number: FA1807001798513
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington DC, USA. Respondent is John Neenan (“Respondent”), Connecticut, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinai.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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2018; the Forum received payment on July 25, 2018.
On July 27, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lockheedmartinai.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 August 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 21, 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@lockheedmartinai.com. Also on August 1, 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 August 22, 2018, 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 the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. It is primarily engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products and services. Complainant has rights in the LOCKHEED MARTIN mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,022,037, registered Dec. 10, 1996). See Compl. Ex. 9. Respondent’s <lockheedmartinai.com> domain name is identical or confusingly similar to Complainant’s mark as it contains the mark in its entirety and merely adds the descriptive term “ai,” short for “artificial intelligence,” along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <lockheedmartinai.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to host a commercial pay-per-click website featuring advertisements for services in competition with Complainant. See Compl. Ex. 10.
Respondent registered and uses the <lockheedmartinai.com> domain name in bad faith. Respondent uses the domain name to intentionally attract Internet users and confuse those users as to the source of the domain name for its own commercial gain. Respondent creates this confusion to provide pay-per-click links to competing websites, which also disrupts Complainant’s business. See Compl. Ex. 10. Further, Respondent has owned the domain name for two-and-a-half months and has failed to make any legitimate use of the domain name. Finally, given Complainant’s federal registrations, the fame of the LOCKHEED MARTIN mark, Complainant’s longstanding use of the mark in commerce, and Respondent’s use of the domain name to advertise competing services, Respondent clearly had knowledge of Complainant’s mark prior to registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide.
2. Complainant has established its trademark rights in the LOCKHEED MARTIN mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,022,037, registered Dec. 10, 1996).
3. Respondent registered the <lockheedmartinai.com> domain name on April 30, 2018.
4. Respondent uses the domain name to host a commercial pay-per-click website featuring advertisements for services in competition with Complainant.
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 claims rights in the LOCKHEED MARTIN mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,022,037, registered Dec. 10, 1996). See Compl. Ex. 9. 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) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . 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 LOCKHEED MARTIN mark for the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s LOCKHEED MARTIN mark. Complainant argues that Respondent’s <lockheedmartinai.com> domain name is identical or confusingly similar to Complainant’s mark as it contains the mark in its entirety and merely adds the descriptive term “ai,” short for “artificial intelligence,” along with the “.com” gTLD. Similar changes in a registered mark have failed in other cases to distinguish a domain name sufficiently for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel therefore finds that the <lockheedmartinai.com> domain name is confusingly similar to the LOCKHEED MARTIN mark under Policy ¶4(a)(i).
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), 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”).
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 trademark and to use it in its domain name, making only the minor alteration of adding the letters “ai”, meaning “artificial intelligence,” to the trademark, which does not negate the confusing similarity with Complainant’s trademark;
(b) Respondent registered the domain name on April 30, 2018;
(c) Respondent uses the domain name to host a commercial pay-per-click website featuring advertisements for services in competition with Complainant;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent has no rights or legitimate interests in the <lockheedmartinai.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 “John Neenan” as the registrant. See Compl. Ex. A. Complainant submits that no evidence exists to show that Respondent has ever been legitimately known by the LOCKHEED MARTIN mark. Panels may use these submissions as evidence of lacking rights or legitimate interests. 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 submits that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and Complainant has not given Respondent permission to use the mark in any manner. Accordingly, the Panel finds that Respondent is not commonly known by the <lockheedmartinai.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent uses the disputed domain name to resolve to a website that contains a series of hyperlinks redirecting users to services that directly compete with Complainant, presumably to benefit commercially from pay-per-click fees. Using a domain name to offer links to services in direct competition with a complainant generally does not confer rights and legitimate interests in the domain name for the purposes of the Policy. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the resolving webpage, which shows a parked page displaying links such as “F35” and “Martin System.” See Compl. Ex. 10. Accordingly, the Panel finds that Respondent uses the domain name to offer competing hyperlinks, failing 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).
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 argues that Respondent registered and uses the <lockheedmartinai.com> domain name in bad faith by disrupting Complainant’s business and creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to benefit commercially by offering links to competing goods or services. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Complainant’s provided screenshot of the resolving webpage shows a parked page displaying links such as “F35” and “Martin System.” See Compl. Ex. 10. Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempted to benefit commercially off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Secondly, Complainant claims that Respondent has owned the domain name for two-and-a-half months and has failed to make any legitimate use of the domain name. Failing to use a confusingly similar domain name can evince 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).”). As noted previously, the resolving domain name appears to resolve to a parked webpage containing hyperlinks to various third-party services. See Compl. Ex. 10. As such, the Panel finds that Respondent has failed to use the domain name for any legitimate purpose and thus registered and uses the disputed domain name in bad faith.
Thirdly, Complainant submits that Respondent had actual knowledge of Complainant’s rights in the LOCKHEED MARTIN mark at the time of registering the <lockheedmartinai.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince 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 known of Complainant’s trademark given Complainant’s federal registrations, the fame of the LOCKHEED MARTIN mark, Complainant’s longstanding use of the mark in commerce, and Respondent’s use of the domain name to advertise competing services. 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 has engaged in when using the disputed domain name, Respondent registered and used it 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 <lockheedmartinai.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: August 23, 2018
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