Lockheed Martin Corporation v. Sayed Rakibul Alam / CTGHOSTBD.COM
Claim Number: FA1403001550121
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Sayed Rakibul Alam / CTGHOSTBD.COM (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedmartincorporationus.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 21, 2014; the National Arbitration Forum received payment on March 21, 2014.
On March 24, 2014, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <lockheedmartincorporationus.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 2014 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@lockheedmartincorporationus.com. Also on March 24, 2014, 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 April 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
Complainant
a) Complainant has rights in the LOCKHEED MARTIN mark, for which it owns numerous trademark registrations and has established long-standing common law rights. Complainant uses its mark in connection with goods and services relating to aerospace, aeronautics, electronic systems, information and technology services, integrated systems and solutions, and space systems. Complainant’s registrations for the LOCKHEED MARTIN mark include those with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,762,003 registered Sep. 9, 2003).
b) The <lockheedmartincorporationus.com> domain name is confusingly similar to the LOCKHEED MARTIN mark. Respondent merely adds the generic term “corporation,” the geographic identifier “us,” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark to create the disputed domain name.
c) Respondent is not commonly known by the <lockheedmartincorporationus.com> domain name. Respondent is not affiliated with Complainant and has not been licensed or otherwise permitted to use the LOCKHEED MARTIN mark in any manner. According to the WHOIS record, the registrant of the <lockheedmartincorporationus.com> domain name is “Sayed Rakibul Alam / CTGHOSTBD.COM.”
d) Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The <lockheedmartincorporationus.com> domain name resolves to a website which displays links allowing Internet users to download certain fraudulent documents purporting to be associated with Complainant. See Complainant’s Exhibit D. The documents are titled “Memorandum of Understanding” and “Irrevocable General Power of Attorney.” Id. Respondent’s actions constitute an attempt as passing off as Complainant which has consistently been held to demonstrate a lack of rights and legitimate interests.
e) Respondent’s attempt to pass off as Complainant is a significant disruption to Complainant’s business. Additionally, there is a very real security risk as a result of Respondent’s attempt to pass off as being affiliated with Complainant. Complainant is a provider of goods and services to defense and civil government customers, and there is significant potential for serious harm caused if Respondent manages to intercept confidential communications and/or to use the disputed domain name and the falsified legal documents to conduct unlawful business under Complainant’s name.
f) Respondent’s use of the LOCKHEED MARTIN mark in its domain name is meant to create a likelihood of confusion that causes mistakes as to the source, sponsorship, affiliation, or endorsement of the <lockheedmartincorporationus.com> domain name. Respondent is taking advantage of the fame and goodwill of Complainant’s mark in an effort to confuse Internet users into believing that the <lockheedmartincorporationus.com> domain name is owned or authorized by Complainant.
g) Given the well-known status of Complainant and its marks, Respondent could have had no other reason to register the <lockheedmartincorporationus.com> domain name and attempt to pass off as Complainant without knowledge of Complainant’s rights in the LOCKHEED MARTIN mark at the time the <lockheedmartincorporationus.com> domain name was registered.
Respondent
Respondent did not submit a Response.
1. Respondent’s <lockheedmartincorporationus.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN mark.
2. Respondent does not have any rights or legitimate interests in the <lockheedmartincorporationus.com> domain name.
3. Respondent registered or used the <lockheedmartincorporationus.com>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 has rights in the LOCKHEED MARTIN mark, for which it owns numerous trademark registrations and has established long-standing common law rights. Complainant states that it uses its mark in connection with goods and services relating to aerospace, aeronautics, electronic systems, information and technology services, integrated systems and solutions, and space systems. Complainant notes that its registrations for the LOCKHEED MARTIN mark include those with the USPTO (e.g., Reg. No. 2,762,003 registered Sep. 9, 2003). Panels have found that the registration of a mark with a trademark authority, regardless of the location of the parties, is evidence of having established rights in the mark. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Therefore, the Panel finds that Complainant has rights in the LOCKHEED MARTIN mark pursuant to Policy ¶ 4(a)(i).
Complainant next alleges that the <lockheedmartincorporationus.com> domain name is confusingly similar to the LOCKHEED MARTIN mark. Complainant notes that Respondent merely adds the generic term “corporation,” the geographic identifier “us,” and the gTLD “.com” to Complainant’s mark to create the disputed domain name. Panels have held that the addition of generic nouns and geographic terms fail to negate confusing similarity. See AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”). The Panel notes that in addition to the gTLD that Respondent adds, Respondent also removes spacing from the mark, and both changes are irrelevant to Policy ¶ 4(a)(i) analysis. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). The Panel finds that the <lockheedmartincorporationus.com> domain name is confusingly similar to the 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 argues that Respondent is not commonly known by the <lockheedmartincorporationus.com> domain name. According to Complainant, Respondent is not affiliated with Complainant and has not been licensed or otherwise permitted to use the LOCKHEED MARTIN mark in any manner. According to the WHOIS record, the registrant of the <lockheedmartincorporationus.com> domain name is “Sayed Rakibul Alam / CTGHOSTBD.COM.” Therefore, the Panel finds that Respondent is not commonly known by the <lockheedmartincorporationus.com> domain name 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).
Complainant contends that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant explains that the <lockheedmartincorporationus.com> domain name resolves to a website which displays links allowing Internet users to download certain fraudulent documents purporting to be associated with Complainant. See Complainant’s Exhibit D. Complainant notes that the documents are titled “Memorandum of Understanding” and “Irrevocable General Power of Attorney.” Id. Complainant asserts that Respondent’s actions constitute an attempt as passing off as Complainant which has consistently been held to demonstrate a lack of rights and legitimate interests. In Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003), the panel found that the respondent attempted to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that Respondent’s attempt to pass off as Complainant via the <lockheedmartincorporationus.com> domain name by hosting fraudulent or fake contracts on the domain name’s website is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant argues that Respondent’s attempt to pass off as Complainant is a significant disruption to Complainant’s business. Respondent resolves the <lockheedmartincorporationus.com> domain name to a website that displays contract forms that are fraudulently displayed as being Complainant’s agreements with any interested Internet user. Therefore, the Panel finds that Respondent registered and is using the <lockheedmartincorporationus.com> domain name disruptively and in bad faith under Policy ¶ 4(b)(iii) because Respondent seeks to gather information from Complainant’s customers for Respondent’s own ends. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant next argues that Respondent’s use of the LOCKHEED MARTIN mark in its domain name is meant to create a likelihood of confusion that causes mistakes as to the source, sponsorship, affiliation, or endorsement of the <lockheedmartincorporationus.com> domain name. Complainant claims that Respondent is taking advantage of the fame and goodwill of Complainant’s mark in an effort to confuse Internet users into believing that the <lockheedmartincorporationus.com> domain name is owned or authorized by Complainant. The Panel infers that Respondent is commercially benefiting from its registration and use of the <lockheedmartincorporationus.com> domain name. Therefore, the Panel finds that the <lockheedmartincorporationus.com> domain name was registered and is used in bad faith in accordance with Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Complainant argues that Respondent attempts to pass of as Complainant and distributes its fraudulent documents purporting to be from Complainant. Additionally, Complainant asserts that there is a very real security risk as a result of Respondent’s attempt to pass off as being affiliated with Complainant. Complainant notes that it is a provider of goods and services to defense and civil government customers, and there is potential for serious harm caused if Respondent manages to intercept confidential communications and/or to use the disputed domain name and the falsified legal documents to conduct unlawful business under Complainant’s name. Panels have found that attempting to pass off as a complainant is demonstrative of bad faith. See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). Therefore, the Panel finds that Respondent registered and is using the <lockheedmartincorporationus.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant asserts that, given the well-known status of Complainant and its marks, Respondent could have had no other reason to register the <lockheedmartincorporationus.com> domain name and attempt to pass off as Complainant without knowledge of Complainant’s rights in the LOCKHEED MARTIN mark at the time the <lockheedmartincorporationus.com> domain name was registered. 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 <lockheedmartincorporationus.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 5, 2014
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