Lockheed Martin Corporation v. Solomon Delawer / Lockheed Martin Space Systems Company
Claim Number: FA2201001981920
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Solomon Delawer / Lockheed Martin Space Systems Company (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinssc.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.
Gerald M. Levine, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 25, 2022; the Forum received payment on January 25, 2022.
On January 26, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lockheedmartinssc.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 January 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2022 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@lockheedmartinssc.com. Also on January 27, 2022, 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.
A timely Response was received and determined to be complete on February 14, 2022.
Complainant filed an Additional Submission on February 14, 2022. Additional submissions are not encouraged. In this submission some of it is unnecessary in that it continues the argument of the complaint. However, the Panel accepts into the record one part further discussed below that responds to a particular unexpected statement made by Respondent in its Response that is relevant to the determination of this matter.
On February 17, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Gerald M. Levine, Esq. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it 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. It maintains over 590 facilities in all 50 states throughout the United States, as well as international business locations in 52 nations and territories. In 2017, Lockheed’s sales exceeded $51 billion.
Complainant owns the federally registered trademarks LOCKHEED and LOCKHEED MARTIN, and has exclusive rights to use those marks in connection with a wide variety of goods and services related to aerospace, aeronautics, electronic systems, energy, integrated systems and solutions, and space systems.
Complaints alleges that the disputed domain name <lockheedmartinssc.com> is confusingly similar to its trademark in that the sole difference between the mark and the disputed domain name is the addition of the letters “ssc.” It alleges that has a long-standing relationship with NASA’s space program, so that adding the letters “ssc” to the Domain Name may lead users to believe it refers to “Space Systems Command,” a military unit created to support Department of Defense space systems. The substitution of “Company” for “Command” demonstrates the addition of “ssc” is typosquatting on Complainant’s trademark.
B. Respondent
Respondent asserts the “ssc” in the top-level domain designation is a sufficient enough differentiator not to be confused for the top-level domain of the complainant nor the complainant’s trademark or service mark. Furthermore, complainant has never used any additional alpha-numeric characters as part of their top-level domain ever since it was first registered.
Having stated that it has a right and legitimate interest in the disputed domain name and that it registered and is using it lawfully, Respondent also states that it agrees to setup a redirect URL for the registered domain name to direct any traffic to Complainants website (https://www.lockheedmartin.com/) or (https://www.lockheedmartin.com/en-us/capabilities/space.html) as proof Respondent is not acting in bad faith.
C. Additional Submissions
In its additional submission Complainant specifically addresses Respondent’s comment about redirecting the URL. It states that Respondent’s offer to redirect the Domain Name to Lockheed Martin’s official website implicitly acknowledges his bad faith because it shows he has deprived Complainant of its control over its LOCKHEED and LOCKHEED MARTIN marks.
1. Complainant has demonstrated that the disputed domain name is confusingly similar to a mark in which it has a right;
2. Respondent lacks rights or legitimate interests in the disputed domain name; and
3. Respondent registered and is using the disputed domain name 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:
(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.
A complainant satisfies its burden by demonstrating that the disputed domain name is either identical or confusingly similar to a mark in which it has a right. It must first demonstrate that it has a right. The record in this case reflects that Complainant has a trademark for the terms LOCKHEED and LOCKHEED MARTIN.
A side-by-side comparison of the disputed domain name with the trademark shows that <lockheedmartinssc.com> is confusingly similar to Complainant’s trademark. The disputed domain name differs only in adding the letters “ssc” which Complainant has stated is merely a contraction for Space Systems Command. Such an addition does not create a distinctive name that can be said to be similar but not confusingly similar.
Accordingly, Complainant has satisfied Paragraph 4(a)(i) of the Policy.
Complainants satisfy their burden of proof under Para. 4(a)(ii) by presenting a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name, and if that burden is carried out, Respondents have the right to offer rebutting evidence that they have either rights or legitimate interests in the disputed domain name. See AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006); JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA190600 1849706 (Forum July 17, 2019) (“According to the majority of Panel decisions this Panel also takes the position that while Complainant has the burden of proof on this issue, once the Complainant has made a prima facie showing, the burden of production shifts to the Respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue.”).
Here, Complainant contends it has not authorized Respondent to use the trademark, that Respondent is not known by the name it has chosen for the disputed domain name, and that Respondent is not using the domain name in a noncommercial or fair use way. See Time Inc. v. Max Martel, D2004-0122 (WIPO May 4, 2004) (<sportsbook illustrated.com>. “[T]here is no circumstance under which the Respondent, unless authorized by the Complainant, could legitimately use the Domain Name under dispute incorporating the [Complainant's] mark without creating a false impression of an association with the Complainant.”).
Complainant has satisfied its prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name. The UDRP provides a set of three nonexclusive circumstances any one of which if demonstrated would support rights or legitimate interests in the disputed Domain Name. A respondent who is called upon to come forward with a rebuttal establishes that it has a right or legitimate interest by demonstrating that it does, not by assertions that it does.
The Panel notes that the disputed domain name does not resolve to an active website. As it does not, Respondent cannot claim a defense under Paragraph 4(c)(i) of the Policy. It has not been commonly known by the disputed domain name therefore it cannot claim a defense Paragraph 4(c)(ii) of the Policy. Respondent also does not make any claim that it has a noncommercial or fair use defense therefore it cannot make any claim under Paragraph 4(c)(iii) of the Policy. As Respondent has no demonstrable plan to use the disputed domain name for any lawful purpose and comes forward with no evidence that it does it cannot have a right or legitimate interest in it. See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012) (“Failure to make active use of a domain name does not constitute a bona fide offering of goods or services or a legitimate non-commercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii)”).
In short, Respondent’s contention that it has a right or legitimate interest in the disputed domain name is totally lacking in substance. Its argument consists solely of this cryptic statement: “[it] is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
As Respondent’s rebuttal evidence falls well short of rebutting Complainant’s prima facie case but rather confirms it, there is no purpose in further analyzing this limb of the Policy.
Accordingly, Complainant has satisfied its burden of proof with respect to Paragraph 4(a)(ii) of the Policy.
That a respondent lacks rights or legitimate interests in a disputed domain name is not the end of the analysis. Complainants must still demonstrate that respondent registered and is using the disputed domain name in bad faith. There are four nonexclusive circumstances any of which if proved establishes abusive registration. Para. 4(b) of the Policy states that “[f]or the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.”
As Respondent is a passive holder of the disputed domain name, has not solicited Complainant and is not a competitor of Complainant the relevant bad faith use claim must be focused on Paragraph 4(b)(iv) which reads as follows:
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
Respondent has not stated why and for what purpose it registered the disputed domain name. It argues that its good faith registration is supported by the fact that “[c]omplainant has never used any additional alpha-numeric characters as part of their top-level domain ever since it was first registered.” Arguing that a domain name is lawful because a rights holder has never affixed other letters or words to its own domain names has no legal basis. Indeed, if the law were what Respondent would like it to be, then the registration of any disputed domain name that varies the morphology of a complainant’s domain names would be lawful.
Respondent’s vacuum of evidence leaves very little for the imagination. If there was purpose to the registration of the disputed domain name, Respondent would have expressed it as a defense under Paragraph 4(c)(i) of the Policy, but it did not do so; and if its purpose was to create a website in the future which it fails to disclose, it is in violation of Paragraph 4(b)(iv) of the Policy, The issue concerning passively held domain names was thoroughly examined in Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO February 18, 2000). The Panel held that an inference will be drawn from respondent’s choice of name when “it is not possible to conceive of any plausible actual or contemplated active use of the Domain Name by respondent that would not be illegitimate.” WIPO Overview 3.0, Sec. 3.3: While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, . (ii) the failure of the respondent to . . . to provide any evidence of actual or contemplated good-faith use, . . . and (iv) the implausibility of any good faith use to which the domain name may be put.”
In this case, too, there is no “plausible actual or contemplated active use of the Domain Name” a point, in fact, that is underscored by Respondent itself when in asserting that there was no bad faith in registering the disputed domain name it is nevertheless willing to “agree[ ] to setup a redirect URL for the registered domain name to direct any traffic to Complainants website.” Offering to redirect an URL to a complainant’s website while maintaining control of the disputed domain name is not a rebuttal against proof of abusive registration but an affirmation that Respondent registered the disputed domain name for an unlawful purpose.
For this reason, Complainant has satisfied its burden of proof with respect to Paragraph 4(a)(iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedmartinssc.com> domain name be TRANSFERRED from Respondent to Complainant.
Gerald M. Levine, Esq., Panelist
Dated: February 25, 2022
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