DECISION

 

Lockheed Martin Corporation v. [Unknown Holder]

Claim Number: FA2408002109328

PARTIES

Complainant is Lockheed Martin Corporation ("Complainant"), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is identified as "Unknown Holder."

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lockheedmartinsg.com>, registered with PSI-USA, Inc. dba Domain Robot.

 

PANEL

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.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 1, 2024; Forum received payment on August 1, 2024.

 

On August 5, 2024, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to Forum that the <lockheedmartinsg.com> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 August 5, 2024, Forum served the Complaint and all Exhibits, including a Written Notice of the Complaint setting a deadline of August 26, 2024 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@lockheedmartinsg.com. Also on August 5, 2024, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On or about August 20, 2024, Forum received an email from an Associate General Counsel for the named Respondent stating that the named Respondent is not the person who registered the domain name and requesting that the Complaint be withdrawn.  This communication does not meet the requirements for a response and was not considered as such.

 

On or about August 27, 2024, Complainant filed an Additional Submission, which was considered by the Panel.

 

On August 27, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a formal Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a defense contractor and aerospace company. It has rights in the LOCKHEED MARTIN mark based upon its registration of that mark with the United States Patent and Trademark Office ("USPTO"). Respondent's <lockheedmartinsg.com> Domain Name is confusingly similar to Complainant's LOCKHEED MARTIN trademark because it incorporates the mark in its entirety, merely omitting a space and adding the letters "sg," the country code for Singapore, and the ".com" generic top-level domain ("gTLD").

 

Respondent has no rights or legitimate interests in the domain name. It is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it for an email account which it uses to impersonate and defraud Complainant, it has not been commonly known by the domain name, the domain name has never resolved to an active website, and the Respondent registered the domain name with false WHOIS contact information.

 

Respondent registered and uses the domain name in bad faith. It registered the confusingly similar domain name while itself having no connection with Complainant, it uses the domain name for an email account with which it impersonates and attempts to defraud Complainant, the domain name has never pointed to an active website, Respondent registered the domain name with false contract information, and Respondent had actual knowledge of Complainant's rights in the LOCKHEED MARTIN mark when it registered the domain name.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

C. Complainant Additional Submission

Complainant requests that the Respondent's name be redacted if the Panel determines that the domain name was fraudulently registered.

 

PRELIMINARY ISSUE: Identity of Respondent

The entity listed as the registrant in the records of the registrar and named as Respondent herein asserts that it did not register the domain name, that it does not own it, and that some unknown person fraudulently used its public information to register the name. The named Respondent requests that the Complaint be withdrawn.

 

The Panel understands the named Respondent's concern about being named as the Respondent in a UDRP decision that may find bad faith registration and use of a domain name when the domain name may have been fraudulently registered in the Respondent's name by an unkown third party. While there is no authority in the Policy or the Rules for a complaint to be withdrawn under circumstances such as this, paragraph 4(j) of the the Policy provides for portions of a decision to be redacted in a proper case. Forum Supplemental Rule 15(b) provides that any request to have a portion of a decision redacted must be made in the Complaint, the Response, or an Additional Submission. By its Additional Submission, Complainant requests the Panel to redact the Respondent's name if it determines that the domain name was fraudulently registered.

 

The evidence that some unknown third party wrongfully and fraudulently registered the domain name in the name of the named Respondent is convincing. In addition to the named Respondent's unequivocal statement that it did not register the domain name, Complainant notes that while the mailing address given for Respondent in the WHOIS printout is in fact the named Respondent's actual address in Pennsylvania, the email address given there for the Respondent is not the named Respondent's email address but is a Gmail address that anyone could have created, whether employed by the named Respondent or not. The Panel is convinced that the named Respondent did not register the domain name and had no part in the conduct which prompted Complainant to bring this proceeding, as more fully described below. Accordingly, pursuant to Policy ¶ 4(j) and in accord with the action of other UDRP panels, the Panel has redacted the name and identifying information of the named Respondent from this Decision. Capital One Financial Corp. v. [Unknown Holder], Case No. FA1607001684338 (Forum Aug. 23, 2016) ("Respondent contends that it has been the victim of identity theft. Specifically, on July 28, the Forum received email communications from Respondent stating that 'Someone has apparently used my name without my knowledge or permission'. . . . The information supplied in that e-mail communication makes the claim of identity theft plausible, and Complainant does not contest this assertion. Accordingly, this Panel finds that it is in the interests of justice that the identity of the Respondent named in the Complaint be redacted from this decision to protect the identity of that person.").

 

All references to "Respondent" in the Findings and Decision below mean and refer to the person who actually registered the domain name, who is identified as [unknown holder] in the case caption.

 

FINDINGS

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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)       the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)       the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").

 

The Panel finds as follows with respect to the matters at issue in this proceeding:

 

Identical and/or Confusingly Similar

The LOCKHEED MARTIN mark was registered to Complainant with the USPTO (Reg. No. 2,022,037) on December 10, 1996 (USPTO registration certificate submitted as Complaint Exhibit 8). Complainant's registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i).  DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i)."). 

 

Respondent's <lockheedmartinsg.com> domain name is confusingly similar to Complainant's LOCKHEED MARTIN trademark. It incorporates the mark in its entirety, merely omitting a space and adding the "sg" country code for Singapore and a gTLD. These changes do not distinguish the domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i).  Robert Half Inc. v. Deepeendra Shukla / ITARSIA INDIA LIMITED, FA2108433 (Forum August 23, 2024) ("[the domain name] fully incorporates the ROBERT HALF mark, merely omitting a space and adding the letters "ind" and the ".com" generic top-level domain ("gTLD").  These changes do not distinguish the domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i), The Pros Closet, Inc. v. Above.com Domain Privacy, FA 1616518 (Forum June 3, 2015) (finding confusing similarity where the <proscloset.com> domain name merely omitted the first term ("the") from Complainant's THE PROS CLOSET mark, eliminated spacing between words, and added the ".com" gTLD.).  The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity "typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name."  Notwithstanding the changes described above, Complainant's mark is clearly recognizable within the domain name.

 

For the reasons set forth above, the Panel finds that the domain name is identical or confusingly similar to the LOCKHEED MARTIN mark, in which Complainant has substantial and demonstrated rights. 

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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"). If a respondent fails to come forward with such evidence, the complainant's prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.

 

Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent's rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):

 

(i)                      Before any notice to the respondent of the dispute, the respondent's 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;

(ii)                      The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii)                      The respondent 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

(iv)                      or service mark at issue.

 

Complainant asserts that Respondent has no rights or legitimate interests in the domain name because (i) it is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it for an email account which it uses to impersonate and defraud Complainant, (ii) it has not been commonly known by the domain name, (iii) the domain name has never resolved to an active website, and (iv) Respondent registered the domain name with false WHOIS contact information. These allegations are addressed as follows:

 

Complaint Exhibit 8 consists of a series of emails in which a person identifying herself as Teresa Yang, a business development manager for a Complainant office located in Singapore, begins and pursues discussions with representatives of IBM about the purchase of a server from IBM, purportedly on behalf of Complainant.  The Complaint unequivocally states that no one at Complainant sent these emails. It is clear from this evidence that Respondent is impersonating Complainant for fraudulent purposes, ordering equipment which would likely be shipped to Respondent, with the invoices going to Complainant. Using a confusingly similar domain name to impersonate a complainant and send fraudulent emails is neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv).  Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) ("Respondent uses the at-issue domain name to pose as Complainant's CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant's ability to process a transfer.  Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy  ¶ 4(c)(iii)"), 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 purportedly from agents of complainant to be 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)).

 

The WHOIS printout submitted as Complaint Exhibit 2 and the information submitted to Forum by the registrar list the named Respondent as the registrant of the domain name. Neither of these names bears any resemblance to the domain name.  Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).  Of course, as discussed above, the named Respondent did not register the domain name and there is no evidence of the name of the person who did so. Accordingly, the Panel is satisfied that the Respondent has not been commonly known by the domain name for the purposes of Policy ¶ 4(c)(iii).

 

The evidence furnished by Complainant establishes the required prima facie case.  On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the domain name.

 

Registration or Use in Bad Faith

Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:

 

(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 which 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 the 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, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site 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 web site or location or of a product of service on the respondent's web site or location.

The evidence of Respondent's conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use of the domain name. First, Respondent registered and is using the domain name, which incorporates and is confusingly similar to the LOCKHEED MARTIN mark, but Respondent has no legitimate connection with that mark or its owner, the Complainant. This does not fit within any of the scenarios listed in Policy ¶ 4(b) but that paragraph recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and the registration and use of a domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of opportunistic bad faith. JUUL Labs, Inc. v. Nics Telekomunikasyon A.S., FA2003001890140 (Forum April 24, 2020) ("[W]here a disputed domain name is so obviously connected with such a well-known name, product or service, its use by someone with no connection to the name, product or service indicates opportunistic bad faith"); Pavillion Agency, Inc. v. Greenhouse Agency Ltd., WIPO Case No. D2000-1221 (finding that respondent's domain names to be "so obviously connected" to the complainant that "use or registration by anyone other than complainants suggests 'opportunistic bad faith'"), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum March 3, 2020) ("the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.").

 

Next, Respondent registered and is using the confusingly similar domain name for an email account which it uses fraudulently to impersonate and attempt to purchase equipment for its own use at the expense of Complainant. The registration and use of a confusingly similar domain name to pass off as a complainant and perpetrate a fraudulent scheme evidences bath faith registration and use. Lockheed Martin Corp. v. Trey Andrews / lockheedmartinmd, Case No. FA1709001748885 (Forum Oct. 20, 2017) ("Respondent's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with a fraudulent scheme involving email messages attempting to defraud Complainant or its vendors by exploiting that confusion, is indicative of bad faith under paragraph 4(b)(iv)."), Lockheed Martin Corp. v. Sam Kadosh, Case No. FA1710001751762 (Forum Nov. 2, 2017) ("Use of a disputed domain name to impersonate a complainant and send fraudulent emails demonstrates bad faith per Policy ¶ 4(b)(iv)."), Hewlett-Packard Development Company, L.P. v. Hyatt, FA1811001818756 (Forum Dec. 28, 2018) ("using a domain name to pose as a complainant to promote a fraudulent scheme has often been held to constitute bad faith"), Hewlett-Packard Development Company, L.P. v. Hyatt, FA1811001818756 (Forum Dec. 28, 2018) ("using a domain name to pose as a complainant to promote a fraudulent scheme has often been held to constitute bad faith") (citations omitted).

 

As also discussed above, Respondent used false contact information when it registered the domain name. This also is evidence of bad faith registration and use. CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) ("As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent's registration of the disputed domain name per Policy ¶ 4(a)(iii).").

 

Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the domain name.¹  Complainant's LOCKHEED MARTIN mark had been used by Complainant since at least as early as 1995 by that time (USPTO registration certificate included in Complaint Exhibit 8 shows first use date). Further, it is a coined, unique word string having no meaning apart from its association with Complainant. More importantly, Respondent had to have had actual knowledge of Complainant in order to impersonate it in its emails. Respondent's selection of the domain name was no happenstance. It had actual knowledge of Complainant and its mark when it registered the domain name. Registering a confusingly similar domain name with actual knowledge of a complainant's rights in an incorporated mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii).  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).

 

For the reasons set forth above, the Panel finds that Respondent registered and is using the domain name in bad faith within the meaning of Policy ¶ 4(a)(iii).

 

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 <lockheedmartinsg.com> domain name be TRANSFERRED TO COMPLAINANT.

 

 

 

Charles A. Kuechenmeister, Panelist

August 29, 2024