Lockheed Martin Corporation v. Liu yu / wangluochuanmei
Claim Number: FA2111001973719
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Liu yu / wangluochuanmei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <1ockheedmartin.com>, registered with DomainName Highway LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 17, 2021; the Forum received payment on November 17, 2021.
On December 8, 2021, DomainName Highway LLC confirmed by e-mail to the Forum that the <1ockheedmartin.com> domain name is registered with DomainName Highway LLC and that Respondent is the current registrant of the names. DomainName Highway LLC has verified that Respondent is bound by the DomainName Highway 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 December 9, 2021, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of December 29, 2021 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@1ockheedmartin.com. Also on December 9, 2021, the Chinese and English language 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 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Complainant alleges that, because Respondent is conversant in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). The Panel notes that the disputed domain name uses English characters and words, and the resolving website contains English words. Therefore, the Panel determines that this proceeding will be conducted in English.
A. Complainant
1. Respondent’s <1ockheedmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <1ockheedmartin.com> domain name.
3. Respondent registered and uses the <1ockheedmartin.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is a defense contractor and holds a registration for the LOCKHEED MARTIN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. 2,022,037, registered Dec. 10, 1996; Reg. 2,627,156, registered Oct. 1, 2002).
Respondent registered the <1ockheedmartin.com> domain name on May 13, 2021, and uses it to host pornographic material.
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:
(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 Jurisprudential 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”).
The Panel finds that Complainant has rights in the LOCKHEED MARTIN mark through its reigstration with the USPTO. See 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 <1ockheedmartin.com> domain name uses the LOCKHEED MARTIN mark, changes the “l” to a “1” and adds the “.com” gTLD. These changes do not distinguish a disputed domain name from the mark it incorporates. See TripAdvisor, LLC v. Zhong Wan / Wanzhongmedia, FA 1623450 (Forum July 31, 2015) (establishing a confusing similarity between the <tripadviso4.com> domain name and the TRIPADVISOR mark, as the domain name was created by swapping the letter ‘r’ from the mark for the number ‘4’). Therefore, the Panel finds that Respondent’s <1ockheedmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant argues that Respondent is not commonly known by the <1ockheedmartin.com> domain name. Complainant has not authorized or licensed Respondent to use its LOCKHEED MARTIN mark. The WHOIS information of record identifies Respondent as “yu Liu/wangluochuanmei.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name, and thus has no rights under under Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.)
Complainant also argues that Respondent does not use the <1ockheedmartin.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host adult content is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”) Complainant provides a screenshot of the disputed domain name’s resolving website, which features pornographic content and gambling related links. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant claims that Respondent lacks rights and legitimate interests in the <1ockheedmartin.com> domain name, as Respondent uses the domain name to purposely misspell Complainant’s mark. Under Policy ¶ 4(a)(iii), typosquatting, or diverting Internet users who misspell a domain name to a respondent’s website, is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel finds that this further demonstrates Respondent’s lack of rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has exhibited a pattern of bad faith registration and use. Under Policy ¶ 4(b)(ii), past adverse UDRP proceedings may demonstrate a pattern of bad faith registration and use. See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”) Complainant provides a series of adverse UDRP rulings against Respondent. Therefore, the Panel finds that Respondent has exhibited a pattern of bad faith registration and use under Policy ¶ 4(a)(ii).
Complainant also argues that Respondent registered and uses the <1ockheedmartin.com> domain name in bad faith to host adult material. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that the respondent’s use of the complainant’s mark to post adult-oriented photographs and to publicize hyperlinks to additional adult-oriented websites evidenced bad faith use and registration of the domain name).
Complainant contends that Respondent registered the <1ockheedmartin.com> domain name with actual knowledge of Complainant’s rights in the LOCKHEED MARTIN mark. The Panel agrees, noting the fame of the mark, and finds bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”)
Complainant claims that Respondent registered and uses the <1ockheedmartin.com> domain name in bad faith by typosquatting. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <1ockheedmartin.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 4, 2022
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