Lockheed Martin Corporation v. Tony Bryan / regel pharm
Claim Number: FA2306002047863
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Tony Bryan / regel pharm (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tx-lmco.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on June 7, 2023; Forum received payment on June 7, 2023.
On Jun 07, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <tx-lmco.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 June 8, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2023 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@tx-lmco.com. Also on June 8, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On July 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it is the world’s largest defense contractor and a global security and aerospace company that employs approximately 116,000 people worldwide. It is primarily engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems, products and services. Complainant maintains over 450 facilities globally, including in every state in the United States. In 2022, Complainant netted $66 billion in sales and $5.7 billion in earnings. Complainant’s origins date back over a century, to when aircraft pioneers Glenn L. Martin and the Loughead brothers—Allan and Malcolm—completed maiden voyages in their individual flying machines in 1909 and 1913 respectively. In 1912, the Glenn L. Martin Company officially incorporated. In 1917, after a brief partnership with the Wright Company, Glenn Martin reestablished the company in Ohio. In 1957, the company changed its name to The Martin Company, and in 1960, the Martin Company merged with American-Marietta Company to become Martin Marietta. In 1918, operating as “Loughead Aircraft Manufacturing Company,” the Loughead brothers made their first military sale of Curtiss HS-2L flying boats to the U.S. Navy. In 1920, the company and the brothers changed their names from “Loughead” to “Lockheed.” In 1926, the Lockheed Aircraft Company was formed. By the end of the 1920s, Lockheed Aircraft Company was supplying aircraft to the U.S. military. The company changed its name again in 1932 to Lockheed Aircraft Corporation, and again in 1977 to Lockheed Corporation. In 1995, Martin Marietta and Lockheed Corporation combined their operations, becoming one of the largest aerospace, defense, and technology companies in the world, reflecting nearly a century of aerospace innovation. Over the years, Complainant and its heritage companies have been involved with many of the most famous and iconic moments in aviation history. Among numerous other accomplishments, Complainant designed and built parts of the Apollo spacecraft which landed the first man on the moon in 1969. Today, Complainant is building the next generation of human exploration spacecraft which will eventually carry astronauts on deep-space missions, including to Mars. Today, the majority of Complainant’s business is with the U.S. Department of Defense and U.S. federal government agencies, but its business also encompasses commercial, as well as international government sales of products, services, and platforms. Complainant has rights in the LMCO mark through its registration in Canada in 1999.
Complainant alleges that the disputed domain name is identical or confusingly similar to its LMCO mark as it incorporates the mark in its entirety, merely adding the geographic term “tx” (which stands for Texas), a hyphen, and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its LMCO mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name is used in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant’s business name and actual physical address, and the fraudulent documents attached to the phishing emails display Complainant’s business name and distinctive logo. The resolving website displays pay-per-click hyperlinks to products and services not related to Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business while creating confusion as to the source and/or affiliation of the domain name by using it in furtherance of a fraudulent email phishing scheme; and by hosting pay-per-click links on the resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the LMCO mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LMCO, with rights dating back to 1999, and uses it in connection with its business in the field of advanced aerospace products and services.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant’s business name and actual physical address, and the fraudulent documents attached to the phishing emails display Complainant’s business name and distinctive logo. The resolving website displays pay-per-click hyperlinks to products and services not related to 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 disputed domain name incorporates Complainant’s LMCO mark in its entirety, merely adding the geographic term “tx” (which stands for Texas), a hyphen, and the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a geographic term, a hyphen, and the “.com” gTLD is insufficient in differentiating from the mark. See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Thus the Panel finds that the <tx-lmco.com> domain name is confusingly similar to Complainant’s LMCO mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its LMCO mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information identifies the registrant as “Tony Bryan / regel pharm”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant presents evidence showing that he disputed domain name is used in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant’s business name and actual physical address, and the fraudulent documents attached to the phishing emails display Complainant’s business name and distinctive logo. The resolving website displays pay-per-click hyperlinks to products and services not related to Complainant. Under Policy ¶¶ 4(c)(i) and (iii), passing off as a complainant while engaging in phishing or hosting pay-per-click links is not a bona fide offering of goods or services, nor a noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name with prior knowledge of Complainant’s mark. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also 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).
As noted above, the disputed domain name is used in furtherance of a fraudulent email phishing scheme. The signature block of the phishing emails displays Complainant’s business name and actual physical address, and the fraudulent documents attached to the phishing emails display Complainant’s business name and distinctive logo. Thus Respondent clearly knew of Complainant and its business. However, it is not obvious that Respondent knew that LMCO was one of Complainant’s trademarks, even though it is an abbreviation of Complainant’s full business name and the term “co”, which is an abbreviation for “company”. Be that as it may, the Panel need not determine whether or not Respondent had actual knowledge of Complainant’s mark, because, for the reasons given below, other elements are dispositive for the instant case.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in furtherance of a fraudulent mail phishing scheme; and to host pay-per-click links not related to Complainant. This is evidence of bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum March 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Thus the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tx-lmco.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 5, 2023
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