Raytheon Company v. luciagao
c/o lu ciagao
Claim Number: FA0701000894079
PARTIES
Complainant is Raytheon Company (“Complainant”), represented by Ryan
M. Kaatz, of Ladas & Parry, Digital Brands Practice,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <raytheon.mobi>, registered with Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn.
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.
Richard DiSalle is Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on January 22, 2007; the
National Arbitration Forum received a hard copy of the Complaint on January 29, 2007.
On February 5, 2007, Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn
confirmed by e-mail to the National Arbitration Forum that the <raytheon.mobi>
domain name is registered with Beijing Innovative
Linkage Technology Ltd. d/b/a dns.com.cn and that the Respondent is the
current registrant of the name.
On February 9, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of March 1, 2007, by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@raytheon.mobi by
e-mail.
A timely Response was received and determined to be complete on February 16, 2007.
The Response was not received in hard copy format. However, in the interest of having
claims decided on the merits and not by default and because there is no claim
that Complainant has been prejudiced in the presentation of its case by the
late submission, Respondent’s opposition documents are accepted as timely. See Gaiam, Inc. v. Nielsen, FA 112469
(Nat. Arb. Forum July 2, 2002). Also,
Respondent submitted a hard copy of its Response on February 24, 2007, and it
was received by the Panel on February 28, 2007.
Respondent also timely submitted other correspondence indicating its
correct name is “Lucia Gao.”
On February 20, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Richard DiSalle as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Raytheon Company (hereinafter referred to as “Raytheon”) is an industry
leader in defense and government electronics, space, information, technology,
technical services, and business aviation and special mission aircraft. Raytheon consists of seven global businesses:
Integrated Defense Systems, Intelligence and Information Systems, Missile
Systems, Network Centric Systems, Space and Airborne Systems, Raytheon Technical
Services Company LLC and Raytheon Aircraft Company. Raytheon employs 80,000 people worldwide and
has annual revenues of approximately $22.0 billion. As of 2005, Raytheon is the fifth largest
military contractor in the world.
Additional information can be found at <raytheon.com>.
Throughout its more than 80-year history, Raytheon has been a leader in
developing defense technologies and converting those technologies for use in
commercial markets. From its advances in
the field of radio tubes, its adaptation of World War II radar technologies to
microwave cooking and its development of the first guided missile, Raytheon has
successfully built upon its pioneering tradition to become a global technology
leader.
Respondent registered the Offending Domain on September 26, 2006, the
first day of the “.mobi” rush in which registration of “.mobi” domain names was
open to the general public, long after Raytheon’s registration and use of its
trademarks incorporating the designation RAYTHEON. Without the authorization or consent of
Raytheon, Respondent is passively holding the <raytheon.mobi> domain name, as the Offending Domain does not
link to an active website. Internet
users seeking Complainant’s website are instead directed to a website that does
not display any information, thereby indicating that the domain name is not
associated with any website.
On November 9, 2006, upon discovery of Respondent’s unauthorized
registration of the <raytheon.mobi>
domain name, Complainant sent a cease-and-desist letter to Respondent
requesting the transfer of the domain-name registration to Complainant. In its response dated November 13, 2006, Respondent
offered to sell the <raytheon.mobi>
domain-name registration to Complainant for $300,000.00, an amount far in
excess of Respondent’s costs in procuring the domain-name registration.
In addition, the Complainant alleges the Offending Domain is identical
and confusingly similar to Complainant’s RAYTHEON marks, in which Complainant
has rights. ICANN Rule 3(b)(ix)(1);
Policy ¶ 4(a)(i); Respondent has no rights to or legitimate interests in the
Offending Domain. ICANN Rule
3(b)(ix)(2); Policy ¶ 4(a)(ii); and Respondent has registered and used the
Offending Domain in bad faith. ICANN
Rule 3(b)(ix)(3); Policy ¶ 4 (a)(iii).
B. Respondent
The only reason “raytheon” was chosen by Respondent is that the pronunciation is quite like the Chinese “leishen” which means the Thunder God. In Chinese there are “leishen” (Thunder God) / “huoshen” (Fire God) / “fengshen” (Wind God) / “shuishen” (Water God) / “diwang” (Earth God) as 5 Manito. And the “Thunder God” is the symbol of strength and wisdom, and to have “Raytheon” as one’s personal mobi site’s name is quite reasonable.
With respect to “Bad Faith”, it
states that it took the letter from DPrahl@ladas.com as a “fake letter with
malevolence.” Therefore, the reply demanding “$300,000” was written with anger and suspicion. It dealt with the ‘joke’ letter by playing
another joke – “If you do want to take the domain name back, you should pay me triple $100,000, that is $300,000.”
Respondent also alleges that after searching in the Internet, she
realized “Raytheon is an industry leader in defense and government electronics,
space, information technology, technical services, and business aviation and
special mission aircraft.” But in
FINDINGS
(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;
(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.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(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.
Complainant asserts rights in the
RAYTHEON mark through registration with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 266,330 issued January 14, 1930). The Panel finds that Complainant’s timely
registration and extensive use of the RAYTHEON mark sufficiently establishes
rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum Feb.
18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes
Complainant's rights in the mark.”); see
also U.S. Office of Pers. Mgmt. v. MS
Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the
USPTO has made a determination that a mark is registrable, by so issuing a
registration, as indeed was the case here, an ICANN panel is not empowered to
nor should it disturb that determination.”).
The disputed domain name contains Complainant’s mark in its
entirety and adds the generic top-level domain (“gTLD”) “.mobi.” The Panel finds that Respondent’s disputed
domain name is identical to Complainant’s mark in accordance with Policy ¶
4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO
June 25, 2000) (finding that the top level of the domain name such as “.net” or
“.com” does not affect the domain name for the purpose of determining whether
it is identical or confusingly similar); see
also Isleworth Land Co. v. Lost in
Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a
well established principle that generic top-level domains are irrelevant when
conducting a Policy ¶ 4(a)(i) analysis.”).
Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
The disputed domain name resolves to no content. The Panel finds that Respondent’s failure to include content in connection with its website is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use in accordance with Policy ¶ 4(c)(iii). See AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000) (finding no rights or legitimate interests where the respondent did not provide any documentation on the existence of its alleged company that might show what the company’s business was, or how the company’s years of existence, if it ever existed, might mesh with the complainant’s trademark claims); see also LFP, Inc. v. B & J Props., FA 109697 (Nat. Arb. Forum May 30, 2002) (the respondent cannot simply do nothing and effectively “sit on his rights” for an extended period of time when the respondent might be capable of doing otherwise).
Respondent offered to sell the disputed domain name for $300,000, which far exceeds Respondent’s likely expenses in registering the domain name. Although the Respondent asserts the offer was a “joke”, the Complainant did not interpret it in that manner. Therefore, the Panel finds that Respondent’s offer to sell its domain name registration for a price that likely far exceeds any out-of-pocket expenses incurred by Respondent evinces bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name); see also World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs).
In addition,
Respondent’s disputed domain name resolves to no content. The Panel finds that Respondent’s failure to
associate any content with its disputed domain name evinces bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See
Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the
respondent’s failure to develop its website in a two year period raises the
inference of registration in bad faith); see
also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO
Nov. 28, 2000) (finding that merely holding an infringing domain name without
active use can constitute use in bad faith).
DECISION
The 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 <raytheon.mobi> domain name be TRANSFERRED
from Respondent to Complainant.
Dated: March 7, 2007
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