Lockheed Martin Corporation v. Adam Adam / Evolve Property
Claim Number: FA1912001875091
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America. Respondent is Adam Adam / Evolve Property (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lockheedmartinbot.com> and <lockheedmartinbots.com>, registered with Dreamscape Networks International Pte Ltd.
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.
Complainant submitted a Complaint to the Forum electronically on December 13, 2019; the Forum received payment on December 13, 2019.
On December 17, 2019, Dreamscape Networks International Pte Ltd confirmed by e-mail to the Forum that the <lockheedmartinbot.com> and <lockheedmartinbots.com> domain names (the Domain Names) are registered with Dreamscape Networks International Pte Ltd and that Respondent is the current registrant of the names. Dreamscape Networks International Pte Ltd has verified that Respondent is bound by the Dreamscape Networks International Pte Ltd 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 December 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of January 13, 2020 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@lockheedmartinbot.com, postmaster@lockheedmartinbots.com. Also on December 18, 2019, 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 January 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 any response from Respondent.
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a large defense contractor and a global security and aerospace company based in the United States. It has rights in the LOCKHEED MARTIN mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037, registered December 10, 1996). Respondent’s <lockheedmartinbot.com> and <lockheedmartinbots.com> Domain Names are confusingly similar to Complainant’s LOCKHEED MARTIN mark as they incorporate the mark in its entirety, merely omitting the space between the words and adding the generic term “bot” or “bots” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the Domain Names. He is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because both Domain Names resolve to inactive or parked webpages that state “Our website is under construction. We’re coming soon!” Respondent is not licensed or authorized to use Complainant’s LOCKHEED MARTIN mark and is not commonly known by the Domain Names.
Respondent registered and uses the Domain Names in bad faith. They are so closely connected with Complainant that their registration constitutes opportunistic bad faith. Both domains resolve to inactive web sites. He registered them for the purpose of using them as leverage to arrange an in-person meeting with the CEO of Complainant’s Australia and New Zealand operations. He has engaged in a pattern of bad faith registration and he had actual knowledge of Complainant’s rights in the LOCKHEED MARTIN mark when he registered the Domain Names.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 Complainant to prove each of the following three elements to obtain an order cancelling or transferring the Domain Names:
(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. See 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:
The LOCKHEED MARTIN mark was registered to Complainant with the USPTO (Reg. No. 2,022,037) on December 10, 1996 (Complaint Exhibit 9). Complainant’s registration of its mark with the USPTO is sufficient to establish its rights in that mark for the purposes of Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <lockheedmartinbot.com> and <lockheedmartinbots.com> Domain Names are confusingly similar to Complainant’s LOCKHEED MARTIN mark as they incorporate the mark in its entirety, merely omitting the space between the words and adding a generic term “bot” or “bots” and the “.com” gTLD. These changes are not sufficient to distinguish the Domain Names from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). 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 Names.
For the reasons set forth above, the Panel finds that the Domain Names are 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. See 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. See 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 has used or has made 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) 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 or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names for a number of reasons: (i) Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because the web sites resolving from them are inactive, (ii) Complainant has not authorized, licensed, or otherwise permitted Respondent to use its mark, and (iii) Respondent is not commonly known by the Domain Names. These allegations are addressed as follows:
Complaint Exhibit 11 consists of screenshots of the web pages resolving from both Domain Names. The only substantive message on them reads, “Our website is under construction. We’re coming soon!” They are clearly inactive. Passive holding of a domain name is neither a bona fide offering of goods or services for the purposes of per Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”), see also Broadcom Corp. v. Wirth, FA 102713 (Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to display an “under construction” page did not constitute a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The WHOIS report submitted as Complaint Exhibit 2 lists the registrants of the Domain Names as “ADAM ADAM / EVOLVE PROPERY.” Neither of these names bears any resemblance to the Domain Names. 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, 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. See 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), see also 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). The Panel is satisfied that Respondent has not been commonly known by the Domain Names for the purposes of Policy ¶ 4(c)(ii).
Complainant states that it has never licensed or authorized Respondent to use its mark in any way, and that Respondent is not affiliated or associated with it. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), see also Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
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. First, the web sites resolving from both Domain Names are inactive, the only content stating that they are under construction and will be “coming soon.” While this use, or non-use, does not fit within any of the circumstances described in Policy ¶ 4(b), that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. See Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), see also Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are merely illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and making no active use of a confusingly similar domain name has often been held by UDRP panels to be evidence of bad faith registration and use. See Lockheed Martin Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, Case No. FA1901001827435 (Forum Feb. 26, 2019) (“Complainant asserts that Respondent’s failure to use the domain names is evidence of its bad faith. Inactive holding of a domain name can be evidence of bad faith under Policy ¶ 4(a)(iii).”), see also Lockheed Martin Corporation v. Shirley T. Barnes / malca-mit, Case No. FA1703001723479 (Forum May 10, 2017) (“Failure to make active use also supports findings of bad faith under Policy ¶ 4(a)(iii).”), WIPO Overview 3.0 at ¶ 3.3 (“From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding. . . . Factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark,” . . . and (iv) the implausibility of any good faith use to which the domain name may be put.”). Both of these factors are present in this case. Complainant’s name is famous and is known throughout the world. Also, it is not possible for Respondent to make any active use of either Domain Names which would not fall within the one or more of the examples of bad faith articulated in Policy ¶ 4(b).
Moreover, in this case the evidence is clear that Respondent registered and is holding the Domain Names in order to obtain a business opportunity for himself. When he received a cease-and-desist letter and follow-up email correspondence from Complainant’s counsel (Complaint Exhibits 12 and 13), Respondent contacted Joe North, the chief executive of Complainant’s operations for Australia and New Zealand, seeking an in-person meeting with him to discuss a possible business relationship between Complainant and himself. In subsequent email communications Respondent offered to transfer the Domain Names to Complainant but continued his demands to meet with Mr. North (Complaint Exhibit 13). In light of the non-exclusive nature of Policy ¶ 4(b), registering and holding a confusingly similar domain name to gain leverage as against the owner of the mark is bad faith. See International Business Machines Corporation v. Nick Lipidarov. Advance-tech Inc., Case No. D2016-0491 (WIPO May 2, 2016) (“The evidence indicates that Respondent used its ownership of the Disputed Domain Name as leverage in negotiations with Complainant, in an attempt to convince Complainant to enter into business with Respondent. When Complainant rejected Respondent’s offer, Respondent refused to transfer the mark to Complainant.”). Respondent’s conduct here matches precisely the conduct of the respondent in the case just cited. He is guilty of bad faith registration and use on this basis as well.
Complainant alleges that Respondent’s conduct also falls within the example of bad faith set forth in Policy ¶ 4(b)(ii). The evidence does suggest that he registered and is holding the Domain Names in order to prevent Complainant from reflecting its mark in those names. The only evidence of a pattern of such conduct, however, is the fact that Respondent registered the two names at issue in this proceeding. Complainant argues that this is sufficient to constitute a pattern for the purposes of Policy ¶ 4(b)(ii), but the WIPO Overview at ¶ 3.1.2 states that “Panels have been reluctant, however, to find a pattern of abuse where a single UDRP case merely contains two domain names registered simultaneously by the same respondent directed at single complainant mark.” Respondent registered both Domain Names on the same day, January 11, 2019 (Complaint Exhibit 2), and they both target Complainant. On these facts the Panel cannot find that Respondent’s conduct here falls within the provisions of Policy ¶ 4(b)(ii).
Next, Respondent registered and is holding the Domain Names, which incorporate the LOCKHEED MARTIN mark, but as discussed above he has no connection with that mark or its owner, the Complainant. Given the non-exclusive nature of Policy ¶ 4(b), registration of a domain name that is confusingly similar to a particular trademark by a person with no connection to the trademark or its owner is evidence of opportunistic bad faith. See Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (“[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.”).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when he registered the Domain Names in January 2019 (Complaint Exhibit 2 shows registration dates). Complainant and its LOCKHEED MARTIN mark are famous and are known throughout the world. Respondent copied that mark verbatim into the Domain Names and used his registration of them to solicit a business relationship with Complainant. In light of the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). See 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 Names in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <lockheedmarthinbot.com> and <lockheedmarthinbots.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
January 17, 2020
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