Lockheed Martin Corporation v. Cun Shuo Zhang / Lei Shi
Claim Number: FA2102001933495
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Cun Shuo Zhang / Lei Shi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockheedmartinbenefitscompass.com>, ,<lockheedmartinbenefits.com>, ,<lmbemefitscompass.com>, ,<lmbenefiscompass.com>, ,<lmbenefitscimpass.com>, ,<lmbenefitscompaas.com>, ,<lmbenefitscompasss.com>, ,<lmbenefitscompss.com>, ,<lmbenefitscopass.com>, ,<lmbeneftscompass.com>, ,<lmbenfitscompass.com>, ,<lmbnefitscompass.com>, ,<lmnenefitscompass.com>, and <lnbenefitscompass.com>, registered with Cloud Yuqu LLC and Chengdu West Dimension Digital Technology Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2021; the Forum received payment on February 25, 2021.
On February 25, 2021, Cloud Yuqu LLC and Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <lockheedmartinbenefitscompass.com>, <lockheedmartinbenefits.com>, <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names are registered with Cloud Yuqu LLC and Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the names. Cloud Yuqu LLC and Chengdu West Dimension Digital Technology Co., Ltd. have verified that Respondent is bound by the Cloud Yuqu LLC and Chengdu West Dimension Digital Technology Co., 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 March 1, 2021, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of March 22, 2021 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@lockheedmartinbenefitscompass.com, postmaster@lockheedmartinbenefits.com, postmaster@lmbemefitscompass.com, postmaster@lmbenefiscompass.com, postmaster@lmbenefitscimpass.com, postmaster@lmbenefitscompaas.com, postmaster@lmbenefitscompasss.com, postmaster@lmbenefitscompss.com, postmaster@lmbenefitscopass.com, postmaster@lmbeneftscompass.com, postmaster@lmbenfitscompass.com, postmaster@lmbnefitscompass.com, postmaster@lmnenefitscompass.com, postmaster@lnbenefitscompass.com. Also on March 1, 2021, the Chinese language 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 March 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the 14 disputed domain names in this case are effectively controlled by the same person or entity, operating different aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that, although the <lockheedmartinbenefits.com> and <lockheedmartinbenefitscompass.com> domains appear to be registered by different registrants from the other 12 disputed domain names, Complainant argues that they are controlled by the same individual or entity because they (1) were registered within two days of the other 12 disputed domain names, (2) were registered with the same registrar as 9 of the other disputed domain names, (3) incorporate the same Lockheed Martin benefits/benefitscompass format as the other 12 domain names, and (4) show substantially the same pay-per-click websites as 6 of the other domain names. The Panel finds, in the absence of any assertion to the contrary, that the named Respondents are the same person or entity, and will refer to them jointly as Respondent.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Complainant has alleged that, because Respondent is conversant in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings, taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant requests that the language of this proceeding be in English because (1) Complainant’s authorized representative’s language is English, (2) Respondent’s disputed domain names incorporate marks and terms that are in English, (3) several of the domain names resolve to English pay-per-click websites, and (4) conducting the proceeding in Chinese would impose a significant burden and cost on Complainant. The Panel finds, in the absence of any assertion to the contrary, that Respondent is conversant in English and will conduct this proceeding in English.
A. Complainant
1. Respondent’s <lockheedmartinbenefitscompass.com>, <lockheedmartinbenefits.com>, <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names (the disputed domain names) are confusingly similar to Complainant’s LOCKHEED MARTIN and LM marks.
2. Respondent does not have any rights or legitimate interests in the disputed domain names.
3. Respondent registered and uses the disputed domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Lockheed Martin Corporation, is a defense contractor and a global security and aerospace company. Complainant holds a registration for the LOCKHEED MARTIN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,022,037, registered December 10, 1996).
Respondent registered the disputed domain names between February 1 and 3, 2021, and uses them for malware and to compete 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the LOCKHEED MARTIN mark through Complainant’s registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant also has common law rights in the abbreviation “LM,” used to refer to its well-known LOCKHEED MARTIN mark since 1995.
Respondent’s <lockheedmartinbenefitscompass.com> and <lockheedmartinbenefits.com> domain names use Complainant’s LOCKHEED MARTIN mark, and simply add generic terms and the gTLD “com.” The Panel also notes that Complainant uses the term “compass” in connection with benefits. Adding generic or descriptive terms and a gTLD to a complainant’s mark fails to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.); see also Huron Consulting Group Inc. v. David White, FA 1701395 (Forum Dec. 6, 2016) (finding that Respondent’s <huroninc.net> domain name is confusingly similar to the HURON CONSULTING GROUP and HURON HEALTHCARE marks under Policy ¶ 4(a)(i) because in creating the domain name, the respondent contains the dominant portion of the marks and appends the term “inc” and a gTLD). The Panel finds that the <lockheedmartinbenefitscompass.com> and <lockheedmartinbenefits.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN mark.
Respondent’s <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names incorporate the long-used abbreviation “LM” for Complainant’s LOCKHEED MARTIN mark, the generic term “benefits” and Complainant’s “compass” term, and simply change one or two letters. The Panel notes that these 12 disputed domain names repeat the pattern in the <lockheedmartinbenefitscompass.com> and <lockheedmartinbenefits.com> domain name, with misspellings, and do not sufficiently distinguish the domain names from Complainant’s LOCKHEED MARTIN and LM marks under Policy ¶ 4(a)(i). See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”). The Panel finds that Respondent’s <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names are confusingly similar to Complainant’s LOCKHEED MARTIN and LM marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), 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 contends that Respondent lacks rights and legitimate interests in the <lockheedmartinbenefitscompass.com>, <lockheedmartinbenefits.com>, <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names, as Respondent is not commonly known by the disputed domain names, and is not authorized to use Complainant’s marks. When a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Lack of authorization to use a complainant’s mark also indicates that a respondent is not commonly known by a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Cun Shuo Zhang / Lei Shi,” and there is no other evidence to suggest that Respondent is commonly known by any of the disputed domain names. Therefore, the Panel finds that Respondent has no rights under Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses the disputed domain names in connection with competitive pay-per-click hyperlinks and malware. Using a disputed domain name in connection with competitive hyperlinks may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Using a disputed domain name for malware is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Complainant provides evidence showing that the disputed domain names resolve to pay-per-click websites, including links related to employee benefits, or to websites that trigger a warning that the websites pose a security threat. The Panel finds that Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <lockheedmartinbenefitscompass.com>, <lockheedmartinbenefits.com>, <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names in bad faith, as Respondent has prior adverse UDRP decisions against it. A respondent’s prior adverse UDRP history can show a pattern of bad faith under Policy ¶ 4(b)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Complainant provides adverse UDRP decisions against Cun Shuo Zhang and Lei Shi. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(ii).
Complainant also contends that Respondent registered and uses the dispute domain names in bad faith, since they resolve to competitive pay-per-click hyperlinks or malware. The Panel agrees and finds bad faith under Policy ¶¶ 4(b)(iii) and 4(a)(iii). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (“The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)”).
Complainant argues that Respondent registered the disputed domain names in bad faith with actual knowledge of Complainant’s rights to its LOCKHEED MARTIN and LM marks, as well as its use of “compass” and “benefits,” when it registered the disputed domain names. The Panel agrees, noting the purposeful combination and misspellings of Complainant’s marks and terms, and finds bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
The Panel finds that 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 <lockheedmartinbenefitscompass.com>, <lockheedmartinbenefits.com>, <lmbemefitscompass.com>, <lmbenefiscompass.com>, <lmbenefitscimpass.com>, <lmbenefitscompaas.com>, <lmbenefitscompasss.com>, <lmbenefitscompss.com>, <lmbenefitscopass.com>, <lmbeneftscompass.com>, <lmbenfitscompass.com>, <lmbnefitscompass.com>, <lmnenefitscompass.com>, and <lnbenefitscompass.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 30, 2021
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