DECISION

 

Lockheed Martin Corporation v. Leah Powell / Trade to Travel Incorporated

Claim Number: FA2502002140073

 

PARTIES

Complainant is Lockheed Martin Corporation ("Complainant"), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Leah Powell / Trade to Travel Incorporated ("Respondent"), British Virgin Islands.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <fucklockheedmartin.com> ("Domain Name"), registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 13, 2025; Forum received payment on February 13, 2025.

 

On February 13, 2025, GoDaddy.com, LLC confirmed by e-mail to Forum that the <fucklockheedmartin.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 February 14, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2025 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@fucklockheedmartin.com. Also on February 14, 2025, 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 7 March 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is the world's largest defense contractor and a global security and aerospace company.  Complainant has rights in the LOCKHEED MARTIN mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,022,037 registered Dec. 10, 1996).  Respondent's <fucklockheedmartin.com> domain name is identical or confusingly similar to Complainant's mark as it wholly incorporates Complainant's mark and adds and adds the generic word "fuck" and the ".com" generic top-level domain ("gTLD").

 

Respondent has no rights or legitimate interests in the <fucklockheedmartin.com> domain name.  Respondent is not commonly known by the Domain Name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the LOCKHEED MARTIN mark or Domain Name. Respondent also does not use the Domain Name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the Domain Name resolves to a website at www.freetrades.com/freenews.php ("Respondent's Website"). Respondent's Website contains material expressing the Respondent's political veiws but is part of a broader business model at www.freetrades.com which offers a commercial service where members buy, sell and trade products with each other. Respondent sells "Purchase Points" to its members, the proceeds of which it claims to donate and also advertises various products available for sale for cash. Respondent's Website contains no genuine, non-commercial criticism of Complainant, and indeed only makes two references to Complainant, one stating that the Respondent owns the Domain Name (one of hundreds containing the name of an entity and a pejorative term the Respondent claims to own), and one listing Complainant as one of a large number of organizations as subjects on which "we will not be silenced".

 

Respondent registered and uses the <fucklockheedmartin.com> domain name in bad faith. Respondent uses the Domain Name to intentionally attempt to attract for its commercial gain, Internet users to Respondent's Website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the content on Respondent's Website.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the LOCKHEED MARTIN mark.  The Domain Name is identical to Complainant's LOCKHEED MARTIN mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used of the Domain Name in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO 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").

 

Identical and/or Confusingly Similar

Complainant has rights in the LOCKHEED MARTIN mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 2,022,037 registered Dec. 10, 1996). Registration with the USPTO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i).  See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority).

 

The Panel finds that the <fucklockheedmartin.com> Domain Name is confusingly similar to the LOCKHEED MARTIN mark as it incorporates the LOCKHEED MARTIN mark adding only the generic word "fuck" and the ".com" gTLD.  The addition of a generic or descriptive term and a gTLD are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Colin LeMahieu v. NANO DARK, FA 1786065 (Forum June 9, 2018) (finding that the addition of a generic term and the generic top-level domain ".com" insufficient to differentiate the <nanodark.com> domain name from the NANO mark); see also 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.").

 

The Panel notes that the term "fuck" is a negative or pejorative term. In support of its conclusion of confusing similarity the Panel notes that section 1.13 of the WIPO Overview 3.0 states that "A domain name consisting of a trademark and a negative or pejorative term (such as <[trademark]sucks.com>, <[trademark]구려.com>, <[trademark]吸.com>, or even <trademark.sucks>) is considered confusingly similar to the complainant's trademark for the purpose of satisfying standing under the first element. The merits of such cases, in particular as to any potential fair use, are typically decided under the second and third elements."

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the LOCKHEED MARTIN mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (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)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS lists "Leah Powell / Trade to Travel Incorporated" as registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).

 

The Domain Name resolves to a website that contains material critical of a variety of organizations and individuals. The Panel notes the comments in section 2.6 of the WIPO Overview 3.0 on the question of "Does a criticism site support respondent rights or legitimate interests?

 

"As noted above, UDRP jurisprudence recognizes that the use of a domain name for fair use such as noncommercial free speech, would in principle support a respondent's claim to a legitimate interest under the Policy.

 

2.6.1 To support fair use under UDRP paragraph 4(c)(iii), the respondent's criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment.

…

2.6.3 Where the domain name is not identical to the complainant's trademark, but it comprises the mark plus a derogatory term (e.g., <trademarksucks.tld>), panels tend to find that the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is prima facie noncommercial, genuinely fair, and not misleading or false. Some panels have found in such cases that a limited degree of incidental commercial activity may be permissible in certain circumstances (e.g., as "fundraising" to offset registration or hosting costs associated with the domain name and website)."

 

In the present case the Respondent is not using the Domain Name for genuine non-commercial criticism of the Complainant. As noted in the Complaint the Respondent's Website contains no material criticizing the Complainant. Rather it contains two references to the Complainant, one being the Domain Name itself and one being part of a list of organizations on which the Respondent "will not be silenced".

 

The Panel's accepts the Complainant's uncontradicted evidence that Respondent is using the Domain Name to divert users to a website that contains a mixture of its political opinions on material unrelated to the Complainant, and what appears to be a commercial business where Respondent operates a commercial online marketplace service.  This is sufficient to establish a prima facie case that Respondent has no rights or rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii).  Use of a confusingly similar domain name to redirect users to an unrelated website may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).  See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) ("Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii)."). Regardless of the political positions expressed on the Respondent's Website, the use of a confusingly similar domain name for a website that contains no genuine non-commercial criticism of the Complainant does satisfy the requirements set out in the Overview above for being a legitimate noncommercial or fair use under the Policy.  The Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests and thus the Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, March 26, 2024, Respondent had actual knowledge of Complainant's LOCKHEED MARTIN mark. The Respondent's Website makes two (albeit fleeting) references to the Complainant, one listing it alongside other similar defense contractors.  In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Name in bad faith by intentionally attempting to attract Internet users to the Respondent's Website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's Website, which operates as a commercial website that does not contain any genuine non-commercial criticism of the Complainant. Use of a disputed domain name to redirect users to an unrelated website may be evidence of bad faith under Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA 1543807 (Forum Mar. 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."). 

 

Further to its comments made under the heading of Rights and Legitimate Interests, the Panel notes that there is a possibility that the Domain Name could have been used for some sort of non-commercial comment on the Complainant.  With certain exceptions, the Policy does not deem use of a Domain Name for non-commercial free-speech to be registration and use in bad faith.  However, in the absence of a formal Response, and given that the Respondent's Website both has a significant commercial element and does not contain any non-commercial criticism of the Complainant, the Panel is entitled to accept the reasonable allegations set forth in the Complaint and find that the Domain Name was registered and used in bad faith.

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <fucklockheedmartin.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 7, 2025