Lockheed Martin Corporation v. jiang li
Claim Number: FA2003001889041
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is jiang li (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartinsavings.co>, registered with Chengdu West Dimension Digital Technology Co., Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 20, 2020; the Forum received payment on March 20, 2020.
On March 21, 2020, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <lockheedmartinsavings.co> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., 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 March 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 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@lockheedmartinsavings.co. Also on March 24, 2020, 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 April 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide.
Complainant holds a registration for the LOCKHEED MARTIN trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,788,897, registered December 2, 2003, and renewed as of December 2, 2013.
Respondent registered the domain name <lockheedmartinsavings.co> on January 24, 2019.
The domain name is confusingly similar to Complainant’s LOCKHEED MARTIN trademark.
Respondent has not been commonly known by the domain name.
Complainant has not authorized Respondent to use its LOCKHEED MARTIN mark in any way.
Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name.
Instead, Respondent’s domain name resolves to a pay-per-click webpage that shows links to a website offering retirement plans.
Respondent lacks rights to or legitimate interests in the domain name.
Respondent has engaged in a pattern of bad faith registration of domain names.
Respondent knew of Complainant’s rights in the LOCKHEED MARTIN mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
Preliminary Issue: Language Of The Proceedings
UDRP Rule 11(a) provides that, in the ordinary course, the language in which this proceeding is to be conducted will be the language of the registration agreement governing the domain name which is the subject of the Complaint before us. That language is Chinese. However, Complainant has requested that this proceeding be conducted in English. In support of its request, Complainant offers the following:
a. the language of Complainant’s authorized representative in this proceeding is English;
b. the domain name here in dispute is rendered entirely in English, which suggests that Respondent is conversant in English;
c. the language of the website to which the domain name resolves is rendered entirely in English, which reinforces the suggestion that Respondent is conversant in English; and
d. to require Complainant to translate all documents pertinent to the prosecution of this proceeding into Chinese will impose upon Complainant an undue burden of time and expense.
Respondent does not dispute any of this. For this reason, and because Rule 11(a) grants to this Panel discretion to adopt for a given proceeding a language other than that of the pertinent registration agreement, “having regard to the circumstances of the administrative proceeding,” we conclude that it is in the interests of justice that this proceeding be conducted in English, and we so direct. See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (the panel there exercising its discretion in deciding that the language of a UDRP proceeding be English, contrary to the relevant Registration Agreement, where the available evidence showed that a respondent had command of English). See also Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006), deciding that the language of a proceeding should be English because: “It is important that the language … decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But 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”).
Complainant has rights in the LOCKHEED MARTIN trademark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <lockheedmartinsavings.co> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN trademark. The domain name incorporates the mark in its entirety, with only elimination of the space between its terms and the addition of the generic term “savings,” plus “.co,” the country code Top Level Domain (“ccTLD”) for Columbia. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum January 22, 2016) (finding that the addition of a generic term and a Top Level Domain to the mark of another in creating a domain name was insufficient to distinguishing a domain name from the mark from which it was derived under Policy ¶ 4(a)(i)).
As to the latter point, see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a TLD.
And, as to Respondent’s elimination of the space between the terms of Complainant‘s mark in forming the domain name, this is of no consequence to our analysis under Policy ¶ 4(a)(i) because domain name syntax does not permit the use of blank spaces.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the challenged <lockheedmartinsavings.co> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy¶4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by its <lockheedmartinsavings.co> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the LOCKHEED MARTIN mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “jiang li,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, and Respondent does not deny, that the <lockheedmartinsavings.co> domain name resolves to a pay-per-click webpage that features links to a website offering retirement plans. In the circumstances described in the Complaint, we may comfortably presume that Respondent receives revenue in the form of click-through fees from the operation of the featured links. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that a respondent failed to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use, of a disputed domain name where the domain name resolved to a website featuring hyperlinks to websites unrelated to the business of a UDRP complainant).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
The Complaint identifies half a dozen instances in which Respondent has been found to have registered and used domain names in bad faith. See Eagle Home Mortgage, LLC and Lennar Pacific Properties Management, Inc. v. Whois Privacy Protection Services, Yinsi Baohu Yi Kai Qi / Jiang Li, Case No. D2018-2311 (WIPO December 7, 2018); Texas Health Resources v Jiang Li, Case No. FA1808001799862 (Forum September 14, 2018); Milliman, Inc. v. Jiang Li, Case No. DCO2018-0004 (WIPO March 11, 2018); Association des Centres Distributeurs E. Leclerc - A.C.D Lec v. Jiang Li, Case No. D2017-2186 (WIPO January 2, 2018); Brotherhood Mutual Insurance Company v. JIANG LI / - / Privacy Gods / Privacy Gods Limited, Case No. FA1707001739892 (Forum August 22, 2017); Accor v. Jiang Li, Case No. D2017-0958 (WIPO July 22, 2017). This record provides persuasive evidence that Respondent has registered and uses in bad faith the domain name at issue here. See, for example, Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (finding bad faith registration and use of a domain name where a UDRP complainant provided evidence that a respondent had been ordered to transfer domain names in previous UDRP decisions).
We are also persuaded by the evidence that Respondent knew of Complainant and its rights in the LOCKHEED MARTIN mark when it registered the disputed
<lockheedmartinsavings.co> domain name. This further demonstrates Respondent’s bad faith in registering that domain name. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [and therefore bad faith in the registration of a domain name that is confusingly similar to the mark of a UDRP complainant] through the name used for the domain and the use made of it.
We reach this conclusion, in particular, on the strength of Complainant’s uncontested allegation that it is the world’s largest defense contractor and a global security and aerospace company. See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum January 9, 2017) (finding that a respondent knew of a UDRP complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name — and thus did so in bad faith — because that complainant presented adequate evidence that its mark was well-known and famous).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <lockheedmartinsavings.co> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 22, 2020
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