Lockheed Martin Corporation v. Chris Moore / Brett Lowe / Pradeep P / Andrew Turnsek
Claim Number: FA2203001987346
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Chris Moore / Brett Lowe / Pradeep P / Andrew Turnsek (together, “Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockheedmartinspacesys.com>, <lockheedmartin.network>, <lockheed-martin.space>, <lockheed.digital>, and <lockheed.gay>, all registered with NameCheap, Inc..
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 8, 2022; the Forum received payment on March 8, 2022.
On March 9, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <lockheedmartinspacesys.com>, <lockheedmartin.network>, <lockheed-martin.space>, <lockheed.digital>, and <lockheed.gay> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by its 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 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 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@lockheedmartinspacesys.com, postmaster@lockheedmartin.network, postmaster@lockheed-martin.space, postmaster@lockheed.digital, postmaster@lockheed.gay. Also on March 10, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 a formal response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
As a preliminary matter, the Panel notes that paragraph 3(c) of the Rules for 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.” The domain name holders are not the same but it is Complainant’s contention that there is only one controlling mind. In support of that contention, it states that:
“(1) all contain the LOCKHEED or LOCKHEED MARTIN marks in their entirety; (2) were registered within six months of each other; (3) were registered with the same privacy service and registrar; (4) are either inactive or resolve to similar pay-per-click websites; and (5) four of the five Domain Names use the same nameservers.”
The Panel accepts that submission and so finds that the proceedings should continue against all named domain holders, treating them as a single entity and referring to them collectively as “Respondent”.
A. Complainant
Complainant asserts trademark rights in LOCKHEED and LOCKHEED MARTIN. Complainant holds national registrations for those trademarks. Complainant submits that the disputed domain names are confusingly similar to its trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes here that one of the domain name holders, Pradeep P, wrote to the Forum stating “I remember having a domain name with the name lockheed martin. But not sure what this is all about.”
The factual findings pertinent to the decision in this case are that:
1. Complainant is a well-known aerospace company formed in 1995 by the merger of two other large companies in the same industry, one using the name LOCKHEED and the other the name MARTIN;
2. Complainant owns, inter alia, United States Patent and Trademark Office (“USPTO”) Reg. No. 2,627,156, registered October 1, 2002 for the trademark LOCKHEED and Reg. No. 2,022,037, registered December 10, 1996 for the trademark LOCKHEED MARTIN;
3. the disputed domain names were registered between March 11, 2021 and September 3, 2021;
4. the disputed domain names <lockheedmartinspacesys.com> and <lockheedmartin.network> are not in use;
5. the disputed domain names <lockheed-martin.space>, <lockheed.digital>, and <lockheed.gay> resolve to parked webpages showing links such as “Aerospace jobs” and “Boeing careers”; and
6. there is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademarks or to register any domain name incorporating its trademarks.
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."
Moving on to the substantive issues, 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 finds it convenient to state here that the cursory reply from one of the domain name holders has not influenced the Decision; the Forum reminded the domain name holder of its entitlement to file a Response and none was forthcoming.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights since it provides proof of registration of the trademarks LOCKHEED and LOCKHEED MARTIN with the USPTO, a national trademark authority.
Further, and for the purposes of what is considered later, the Panel finds that LOCKHEED and LOCKHEED MARTIN enjoy the additional status of being common law trademarks. The evidence is that the name LOCKHEED has been used by Complainant’s predecessors in business since 1927 and that the name LOCKHEED MARTIN has been used since 1995.
Complainant submits that the disputed domain names are confusingly similar to the trademarks. For the purposes of comparison of the disputed domain names with the trademark, the various gTLDs can be disregarded. To the extent to which a distinction need be drawn, the Panel finds most of the domain names to be legally identical to one or other of the trademarks. Given the usual lack of punctuation in domain name syntax, it might be reasonably concluded that the presence or absence of hyphenation between the names “Lockheed” and “Martin” does not alter a finding of legal identity. In any event, they are all, without question, confusingly similar to one, other (if not both) trademarks and that holds true for the domain, <lockheedmartinspacesys.com>, which merely adds the non-distinctive term, “sys” (see, for example, Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”); Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) finding confusing similarity where a disputed domain name contains complainant’s trademark and differs only by the addition of a generic or descriptive phrase and top-level domain).
Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The domain name owners were concealed from the public but in consequence of these proceedings the names of the underlying owners were disclosed. None of those names carry a suggestion that Respondent might be commonly known by the relevant domain name. Further, Complainant asserts that it did not authorize Respondent to register or use its trademarks, and that Respondent is not affiliated with, associated with, or otherwise endorsed by Complainant.
There is no evidence that Respondent has any trademark rights. There has been no bona fide offering of goods or services or legitimate noncommercial or fair use of the domain names. The evidence is that the disputed domain names are either not in use or else resolve to webpages with generic links to services connected with, or competitive to, Complainant’s business under the trademarks.
A prima facie case has been made and so the onus shifts to Respondent (see, for example, Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) regarding the use of links to products that compete with those of a complainant).
In the absence of a Response, the Panel finds that Respondent has not discharged the onus and finds the Respondent has no rights or interests. Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain names were registered and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s 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 the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above with respect to the disputed domain names <lockheed-martin.space>, <lockheed.digital> and <lockheed.gay>. The Panel has already found those names to be identical to the respective trademark. Confusion is highly likely. The resolving websites exist for commercial gain in some form or another. In terms of the Policy, the Panel finds that Respondent is using the domain names to intentionally attract, for commercial gain, internet users to its websites by creating a likelihood of confusion with the trademark as to the source, sponsorship, affiliation, or endorsement of those websites (see, for example, American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 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)”)).
The domain names, <lockheedmartinspacesys.com> and <lockheedmartin.network> require a different analysis since they are not in use. In those cases, none of the above scenarios has application but nevertheless the Panel finds, as separate matters, registration and use in bad faith. The Panel has already found that Complainant’s trademarks have acquired a reputation. It is more likely than not that Respondent was aware of them at the time the domain name was registered. There is no explanation why Respondent might desire to register the disputed domain names for bona fide reasons and the Panel finds registration in bad faith. Further, whilst there is no use of the domain names, the notoriety of the trademarks and the lack of any plausible good faith way in which the domain names might be used by Respondent brings Respondent’s conduct directly under the rubric of “passive holding” as first enunciated in the case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and followed in countless cases since. The Panel finds bad faith use in line with the reasoning set out in that case which applies with equal application here.
The Panel finds registration and use of the domain names in bad faith and so finds that Complainant has satisfied the third and final element 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 <lockheedmartinspacesys.com>, <lockheedmartin.network>, <lockheed-martin.space>, <lockheed.digital>, and <lockheed.gay> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
April 6, 2022
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