Lockheed Martin Corporation v. keith harp
Claim Number: FA2103001935516
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is keith harp (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <f35jointstrikefighter.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 5, 2021. The Forum received payment on March 5, 2021.
On March 5, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <f35jointstrikefighter.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 March 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 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@f35jointstrikefighter.com. Also on March 5, 2021, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 30, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant is a defense contractor and a global security and aerospace company. Complainant has rights in the F-35 and JOINT STRIKE FIGHTER marks based upon registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <f35jointstrikefighter.com> domain name is confusingly similar to Complainant’s marks.
Respondent does not have rights or legitimate interests in the <f35jointstrikefighter.com> domain name because Respondent is not commonly known by the domain name and is not authorized to use Complainant’s F-35 or JOINT STRIKE FIGHTER marks. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent hosts click-through links in promotion of other commercial websites.
Respondent registered and uses the <f35jointstrikefighter.com> domain name in bad faith. Respondent offers the domain name to Complainant in exchange for an opportunity to communicate directly with Complainant. Additionally, Respondent attracts users for commercial gain by displaying third-party commercial links. Finally, Respondent’s had actual knowledge of Complainant’s rights in the marks at the time the domain name was registered.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, in emails to the Forum on March 6, 2021, Respondent stated: “The domain has been open for almost a year” and “I don't own that domain i never renewed it if you had a clue”.
FINDINGS
Complainant has established all the elements entitling it to relief.
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 formal 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”).
Complainant has shown that it has rights in the F-35 and JOINT STRIKE FIGHTER marks based upon registrations with the USPTO including Reg. No. 2,830,735 for the mark F-35, registered April 6, 2004 and Reg. No. 2,796,060 for the mark JOINT STRIKE FIGHTER, registered December 16, 2003.
The Panel finds Respondent’s <f35jointstrikefighter.com> domain name to be confusingly similar to Complainant’s marks since it incorporates both marks in their entirety, neither of which detracts from the distinctiveness of the other, and merely adds the inconsequential gTLD “.com”, which may be ignored.
Complainant has established this element.
Policy ¶ 4(c) sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of Policy ¶ 4(a)(ii), i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <f35jointstrikefighter.com> domain name was registered on May 18, 2019, many years after Complainant has shown that its F-35 and JOINT STRIKE FIGHTER marks had become famous through extensive use and had also been registered in the United States. There is no evidence under Policy ¶ 4(c)(ii) that Respondent has been commonly known by the domain name, which resolves to a parking page with links to pay-per-click advertisements unrelated to Complainant’s business.
In correspondence initiated in September 2019 by a letter of demand from Complainant’s authorized representatives, Respondent agreed to transfer the domain name to Complainant but over the following months repeatedly refused to do so unless put in contact with Complainant directly. Complainant contends Respondent was using the domain name to leverage an opportunity to speak to someone at Lockheed Martin.
The Panel notes that Respondent’s correspondence with Complainant’s representatives is inconsistent with Respondent’s informal assertion to the Forum that Respondent does not “own” the domain name at issue.
These circumstances, coupled with Complainant’s assertions, constitute a prima facie case that Respondent lacks rights and legitimate interests in the <f35jointstrikefighter.com> domain name under Policy ¶ 4(a)(ii). Accordingly, the burden shifts to Respondent to show he does have rights or legitimate interests. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the <f35jointstrikefighter.com> domain name under Policy ¶ 4(a)(ii).
Complainant has established this element.
Registration and Use in Bad Faith
Policy ¶ 4(b) sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of Policy ¶ 4(a)(iii), including:
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
In the circumstances described above in relation to the second element the Panel is satisfied that Respondent was aware of Complainant’s well-known F-35 and JOINT STRIKE FIGHTER marks when registering the <f35jointstrikefighter.com> domain name and did so intentionally to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the affiliation or endorsement of the website to which the domain name resolves and of the pay-per-click links displayed there.
The Panel also finds Respondent to have used the domain name in bad faith as leverage in an endeavour to gain direct access to Complainant. See Lockheed Martin Corp. v. Adam Adam / Evolve Prop., Case No. FA1912001875091 (Forum Jan. 17, 2020): “In light of the non-exclusive nature of Policy ¶ 4(b), registering and holding a confusingly similar domain name to gain leverage as against the owner of the mark is bad faith.”
The Panel therefore finds that Respondent registered and is using the domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <f35jointstrikefighter.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 1, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page