Lockheed Martin Corporation v. Tim Rollins
Claim Number: FA1202001427838
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M.J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Tim Rollins (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skunkwerksllc.com>, registered with Godaddy.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 2, 2012; the National Arbitration Forum received payment on February 8, 2012.
On February 2, 2012, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <skunkwerksllc.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 8, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2012 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@skunkwerksllc.com. Also on February 8, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 5, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <skunkwerksllc.com> domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
2. Respondent does not have any rights or legitimate interests in the <skunkwerksllc.com> domain name.
3. Respondent registered and used the <skunkwerksllc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, began using its SKUNK WORKS mark in 1943 in connection with one of Complainant’s divisions and the goods and services produced by that division, such as the SR-71 BLACKBIRD high-speed jet, the F-117 NIGHTHAWK fighter jet, and other technical and engineering products. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its SKUNK WORKS mark:
Registration Number Registration Date
1,161,482 July 14, 1981;
2,511,053 November 20, 2001;
2,511,054 November 20, 2001;
2,532,721 January 22, 2002;
2,621,790 September 17, 2002;
2,652,258 November 19, 2002; and
2,759,221 September 2, 2003.
Respondent, Tim Rollins, registered the <skunkwerksllc.com> domain name on July 26, 2011. The disputed domain name resolves to a parked website that contains hyperlinks to unrelated, third-party websites.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Policy ¶ 4(a)(i) requires Complainant to demonstrate rights in a mark. Complainant alleges that it owns rights in the SKUNK WORKS mark. In support of this allegation, Complainant presented the Panel with copies of its trademark registration certificates with the USPTO for its SKUNK WORKS mark. The Panel finds that Complainant owns numerous USPTO trademark registrations for the SKUNK WORKS mark:
Registration Number Registration Date
1,161,482 July 14, 1981
2,511,053 November 20, 2001
2,511,054 November 20, 2001
2,532,721 January 22, 2002
2,621,790 September 17, 2002
2,652,258 November 19, 2002
2,759,221 September 2, 2003
Based on these trademark registrations, the Panel concludes that Complainant sufficiently demonstrated its rights in the SKUNK WORKS mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Policy ¶ 4(a)(i) also instructs Complainant to prove that the disputed domain name is identical or confusingly similar to Complainant’s mark. Complainant argues that the <skunkwerksllc.com> domain name contains a phonetically similar misspelling of Complainant’s SKUNK WORKS mark, replacing the letter “o” with the letter “e.” Complainant further claims that the disputed domain name also contains the generic business abbreviation “llc.” The Panel notes that the disputed domain name also does not contain the space found in Complainant’s mark and features the generic top-level domain (“gTLD”) “.com.” Complainant argues that these alterations to Complainant’s mark fail to adequately distinguish the disputed domain name and actually render the <skunkwerksllc.com> domain name confusingly similar to Complainant’s SKUNK WORKS mark. The Panel agrees with Complainant’s analysis. See Colibri Corp. v. Dinoia, FA 662937 (Nat. Arb. Forum May 5, 2006) (finding that the <calibri.com> domain name was visually and phonetically similar to the complainant’s COLIBRI mark); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel concludes that Respondent’s <skunkwerksllc.com> domain name is confusingly similar to Complainant’s SKUNK WORKS mark under Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) requires Complainant to present a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant has made such a case, the burden of proof shifts to Respondent. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). In this case, the Panel determines that Complainant has made a prima facie case. Respondent did not provide any proof of rights and legitimate interests because Respondent did not respond to this case. The Panel may treat Respondent’s lack of Response as evidence that Respondent lacks rights and legitimate interests in the domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). However, the Panel chooses to analyze the facts in the record under Policy ¶ 4(c) in order to determine whether Respondent has rights in the disputed domain name.
Policy ¶ 4(c)(ii) allows Respondent to demonstrate rights and legitimate interests in the disputed domain name if Respondent proves it is commonly known by the domain name. Complainant claims that Respondent is not commonly known by the <skunkwerksllc.com> domain name. Complainant asserts that Respondent was formerly known as “Skunkwerks LLC” but that Respondent changed its business name after Complainant communicated with Respondent about violating Complainant’s trademark rights. Complainant claims that Respondent is not affiliated with Complainant and that Respondent is not licensed to use Complainant’s SKUNK WORKS mark. The WHOIS information identifies the registrant of the disputed domain name as “Tim Rollins.” Respondent did not respond to this case and did not provide the Panel with any evidence that it is commonly known by the disputed domain name. Based on the evidence in the record, the Panel finds that Respondent is not commonly known by the <skunkwerksllc.com> domain name and thus cannot demonstrate rights under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent may also demonstrate rights and legitimate interests in the disputed domain name if Respondent shows that it uses the disputed domain name to make a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the domain name. Complainant contends that Respondent uses the <skunkwerksllc.com> domain name to host a list of various sponsored, click-through hyperlinks, that resolve to third-party websites unrelated to Complainant and Complainant’s SKUNK WORKS division. As noted by the click-through hyperlinks designation, Complainant avers that Respondent commercially benefits each time an Internet user clicks on one of the hyperlinks. The Panel determines that Respondent’s use of the confusingly similar <skunkwerksllc.com> domain name is not evidence of a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed domain name. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Thus, the Panel holds that Respondent did not demonstrate rights and legitimate interests in the <skunkwerksllc.com> domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel concludes that Respondent does not own rights and legitimate interests in the <skunkwerksllc.com> domain name and that Complainant satisfied Policy ¶ 4(a)(ii).
Policy ¶ 4(b)(iv) allows Complainant to prove Respondent’s bad faith registration and use by showing that Respondent registered and uses the disputed domain name for the purpose of commercially benefiting by creating confusion as to Complainant’s affiliation with the domain name. Complainant contends that Respondent receives click-through fees from the third-party hyperlinks found at the resolving website. Complainant further claims that Respondent’s registration of the confusingly similar <skunkwerksllc.com> domain name creates confusion as to Complainant’s affiliation with the disputed domain name, especially as the disputed domain name contains a phonetic misspelling of Complainant’s mark. The Panel agrees with Complainant and determines that Complainant sufficiently proved that Respondent is attempting to commercially benefit from Internet user confusion as to Complainant’s affiliation with Respondent. Therefore, the Panel holds that Respondent registered and uses the <skunkwerksllc.com> domain name in bad faith under Policy ¶ 4(b)(iv). See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name May Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Policy ¶ 4(a)(iii) also permits Complainant to show that Respondent registered the disputed domain name in bad faith if Complainant can demonstrate that Respondent had actual knowledge of Complainant’s mark at the time of registration. Complainant notes that Complainant’s SKUNK WORKS mark is well-known and that Complainant uses its <skunkworks.com> domain name to promote its business and its mark. Respondent did not respond and, therefore, did not refute Complainant’s accusations. Based on the fame of Complainant’s SKUNK WORKS mark, the Panel must conclude that Respondent had actual knowledge of Complainant’s mark. Consequently, the Panel again finds that Respondent registered and uses the <skunkwerksllc.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Nat. Arb. Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii)."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. 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).
As Complainant proved that Respondent registered and uses the <skunkwerksllc.com> domain name in bad faith, the Panel finds that Policy ¶ 4(a)(iii) is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skunkwerksllc.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 14, 2012
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