Lockheed Martin Corporation v. Derek Bissen
Claim Number: FA1304001497401
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Derek Bissen (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedemployeelending.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 30, 2013; the National Arbitration Forum received payment on April 30, 2013.
On April 30, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <lockheedemployeelending.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 1, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2013 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@lockheedemployeelending.com. Also on May 1, 2013, 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 May 24, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
i. Complainant owns the LOCKHEED mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,627,156 registered Oct. 1, 2002).
ii. Complainant has used the LOCKHEED mark since 1926.
iii. Complainant uses the mark to designate its services in aerospace, aeronautics and aircraft, electronic systems, as well as a variety of related goods and services, and enjoys notoriety in the LOCKHEED name.
iv. Complainant owns over 230 domain names containing variations of the LOCKHEED mark.
i. Policy ¶ 4(a)(i)
1. The <lockheedemployeelending.com> domain name is confusingly similar to the LOCKHEED mark.
ii. Policy ¶ 4(a)(ii)
1. Respondent is not commonly known by the domain name at issue. Complainant does not endorse the resolving website.
2. Respondent does not use the disputed domain name to make a bona fide offering of goods and services or a legitimate noncommercial or fair use. Respondent uses the domain name to display a blog template with no additional content.
iii. Policy ¶ 4(a)(iii)
1. Respondent prevents Complainant from registering a domain name containing its LOCKHEED mark.
2. Respondent fails to make an active use of the disputed domain name.
3. At a minimum, Complainant’s trademark registration for the LOCKHEED mark establishes at least constructive knowledge of Complainant and its rights in the mark on the part of Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Lockheed Martin Corporation, owns the LOCKHEED mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,627,156 registered Oct. 1, 2002). Complainant has used the LOCKHEED mark since 1926. Complainant uses the mark to designate its services in aerospace, aeronautics and aircraft, electronic systems, and related goods and services.
Respondent, Derek Bissen, registered the domain name on February 6, 2013.
Respondent uses the domain name to display a blog template with no additional content.
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(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.”).
Complainant’s USPTO trademark registration establishes its rights in the LOCKHEED mark under Policy ¶ 4(a)(i). See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO).
Complainant contends the <lockheedemployeelending.com> domain name is confusingly similar to the LOCKHEED mark. Complainant alleges that the domain name consists of the generic terms “employee” and “lending,” in addition to the LOCKHEED mark in its entirety. Complainant offers credit union and financial services; therefore the terms “employee” and “lending” are descriptive. The domain name includes the generic top-level domain (“gTLD”) “.com.” The Panel finds that the disputed domain name is confusingly similar to the LOCKHEED mark pursuant to Policy ¶ 4(a)(i), due to the addition of generic terms and the addition of a gTLD. See 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.”); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant contends that Respondent is not commonly known by the <lockheedemployeelending.com> domain name either as a business, individual, or organization. Complainant claims that Respondent has never been affiliated with Complainant, nor has Complainant ever licensed or permitted Respondent to use its mark for any purpose, including use in a domain name. The Panel finds that that Respondent is not commonly known by the domain name in dispute pursuant to Policy ¶ 4(a)(i) as nothing in Respondent’s WHOIS information suggests the Respondent is commonly known by the disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant contends that Respondent’s limited use of the website to display a blog template page with no additional content aside from a link to <wordpress.org>, does not provide a bona fide offering of goods and services. Additionally, Complainant asserts that Respondent’s limited use of the <lockheedemployeelending.com> domain name does not constitute a legitimate noncommercial fair use of the disputed domain name. The Panel finds the Respondent’s limited use of the domain name is not a bona fide offering of goods as services under Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint); see also Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Policy ¶ 4(a)(iii) recognizes other activity by Respondent that may constitute bad faith outside of Policy ¶ 4(b). Policy ¶ 4(b) is descriptive rather than exclusive and have found additional circumstances to represent bad faith. See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
Complainant argues that Respondent’s registration and use is in bad faith because the website resolving from the disputed domain name merely displays a blog template with no additional content other than a link to <wordpress.org>. Complainant asserts that such use constitutes a failure to make an active use of or to develop the domain name. However, Respondent’s website has content saying the phrase “hello world.” The Panel finds this limited use does not constitute an active use of the domain name. The Panel further finds that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Complainant asserts that, due to its registration of the mark with the USPTO, Respondent must have had at least constructive knowledge of Complainant's rights in the LOCKHEED mark when Respondent registered the disputed domain name. Constructive knowledge does not support a finding of bad faith. See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Nat. Arb. Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."). However, Respondent had actual knowledge of Complainant’s rights in the LOCKHEED mark upon registration of the <lockheedemployeelending.com> domain name. Therefore, Respondent registered the <lockheedemployeelending.com> domain name in bad faith according to 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 <lockheedemployeelending.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 7, 2013
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