Lockheed Martin Corporation v. ICS INC.
Claim Number: FA1306001507602
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is ICS INC. (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheenmartin.com>, registered with TUCOWS, INC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 28, 2013; the National Arbitration Forum received payment on June 28, 2013.
On July 2, 2013, TUCOWS, INC. confirmed by e-mail to the National Arbitration Forum that the <lockheenmartin.com> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the name. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, 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 July 3, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 23, 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@lockheenmartin.com. Also on July 3, 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 July 24, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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.
i. Respondent is not commonly known by the domain name. Respondent is not affiliated with Complainant, or otherwise licensed to use Complainant’s marks.
ii. Respondent is using the domain name to host a website that promotes other commercial websites.
iii. Respondent is using the <lockheenmartin.com> domain name in a tactic commonly known as typosquatting.
i. Respondent is using the domain name to redirect Internet users to a commercial website where Respondent provides various sponsored click-through links which direct to additional search pages with pay-per-click links, or other commercial websites.
ii. The use of the typosquatted domain name indicates bad faith use and registration under Policy ¶ 4(a)(iii).
iii. Respondent’s continued registration and use of the domain name constitutes bad faith due to its actual knowledge of Complainant’s trademark rights pursuant to its registration of the <lockheenmartin.com> domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant has rights in its LOCKHEED MARTIN mark.
2. Respondent’s <lockheenmartin.com> domain name is confusingly similar to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain name in bad faith.
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 contends that it owns multiple trademark applications and registrations for goods and services in the fields of aerospace, aeronautics and aircraft, electronic systems, information and technology services, integrated systems and solutions, and space systems, as well as a wide variety of goods and services related thereto. Complainant asserts that it is the owner of trademark registrations with the USPTO for the LOCKHEED MARTIN mark (e.g., Reg. No. 2,022,037 registered on Dec. 10, 1996). See Exhibit D. The Panel notes that although Respondent appears to reside in the Cayman Islands, Policy ¶ 4(a)(i) does not require a Complainant to register its trademark in the country in which Respondent resides and operates, so long as it can establish rights in the mark in some jurisdiction. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Accordingly, the Panel concludes that Complainant’s registration of the LOCKHEED MARTIN mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant argues that the <lockheenmartin.com> domain name differs from Complainant’s LOCKHEED MARTIN mark by only one letter, namely, the replacement of the letter “d” with the letter “n.” The Panel holds that Respondent’s replacement of letters in the mark in forming this domain name does not distinguish its domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The Panel notes that Respondent removes the space in Complainant’s LOCKHEED MARTIN mark. Complainant also asserts that the addition of the “.com” gTLD does not prevent a likelihood of confusion with Complainant’s marks. The Panel determines that Respondent’s omission of spaces and addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <lockheenmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent is not commonly known by the domain name. Complainant alleges that the website located at the <lockheenmartin.com> domain name is not owned, affiliated with, or endorsed by Complainant. Complainant argues that Respondent is neither affiliated with, nor has it been licensed or permitted to use Complainant’s marks or any domain names incorporating the marks. The Panel notes that In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that 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 respondent was commonly known by the domain names, and complainant had not authorized the respondent to register a domain name containing its registered mark. Consequently, the Panel finds that Respondent is not commonly known by the <lockheenmartin.com> domain name under Policy ¶ 4(c)(ii).
Complainant asserts that Respondent is using the domain name to host a website that promotes other commercial websites. Complainant claims that the <lockheenmartin.com> domain name resolves to a website that provides various sponsored click-through links, which direct Internet users to additional search pages or third-party commercial websites. The Panel observes that Respondent’s <lockheenmartin.com> domain name resolves to a hyperlink directory webpage featuring unrelated hyperlinks such as “LOCAL SECURITY LOCKSMITHS,” “R&J KEYSHOP,” “NEED A LOCKSMITH? CALL US,” and more. See Exhibit B. Prior panels have held that a respondent’s use of a domain name to display unrelated hyperlinks is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy). Thus, the Panel finds that Respondent is not using the disputed domain name for a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant asserts that Respondent is using the <lockheenmartin.com> domain name in a tactic commonly known as typosquatting. Complainant alleges that Respondent is taking advantage of Internet users’ common typographical errors and redirecting them back to Complainant’s website in an effort to confuse users into believing that the <lockheenmartin.com> domain name is affiliated with Complainant. The Panel notes that Respondent replaces the letter “d” with the letter “n” in Complainant’s LOCKHEED MARTIN mark for its domain name. The Panel concludes that Respondent has engaged in typosquatting, demonstrating that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
Complainant alleges that Respondent is using the domain name to redirect Internet users to a commercial website where Respondent provides various sponsored click-through links which direct to additional search pages with pay-per-click links, or other commercial websites. The Panel notes that Respondent’s <lockheenmartin.com> domain name resolves to a hyperlink directory webpage containing unrelated hyperlinks such as “ACADEMY LOCKSMITH,” “LOCKSMITHS NEAR YOU,” “NEED A LOCKSMITH? CALL US,” and more. See Exhibit B. Complainant asserts that it is presumed that Respondent commercially benefits from the use of such third-party links through the accrual of click-through fees. The Panel finds that Respondent commercially gained through its providing of unrelated hyperlinks on its <lockheenmartin.com> domain name. The Panel holds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Complainant alleges that the use of the typosquatted domain name indicates bad faith use and registration under Policy ¶ 4(a)(iii). The Panel notes that Respondent replaces the letter “d” with the letter “n” in Complainant’s LOCKHEED MARTIN mark for its domain name. In Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003), the panel held that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).” Therefore, the Panel holds that Respondent has engaged in typosquatting, which demonstrates bad faith use and registration pursuant to Policy ¶ 4(a)(iii).
Complainant contends that Respondent’s continued registration and use of the domain name constitutes bad faith due to its actual knowledge of Complainant’s trademark rights pursuant to its registration of the <lockheenmartin.com> domain. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore determine that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheenmartin.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 7, 2013
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