Lockheed Martin Corporation v. Joel Moman
Claim Number: FA1406001565549
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, USA. Respondent is Joel Moman (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lockheedaspen.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2014; the National Arbitration Forum received payment on June 19, 2014.
On June 20, 2014, GODADDY.COM, LLC confirmed by email to the National Arbitration Forum that the <lockheedaspen.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 June 23, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 14, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@lockheedaspen.com. Also on June 23, 2014, the Written Notice of the Complaint, notifying Respondent of the email 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 22, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is a corporation that ranks among the largest companies, both in the United States and globally. Complainant holds numerous trademark registrations for LOCKHEED and variations thereof, dating back many years, both in the United States and in many other countries; Complainant states that its use of the mark dates back to 1926, and claims that the mark has acquired substantial fame and distinctiveness over the years.
Complainant contends that the disputed domain name <lockheedaspen.com> is confusingly similar to its LOCKHEED mark, noting that that domain name merely adds the geographic term “Aspen” and the top-level domain “.com” to its mark. Complainant also notes that it owns the business entity Lockheed Martin Aspen Systems Corporation, and that the disputed domain name has the potential to cause significant confusion among consumers and Internet users.
Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name, and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that it has not authorized Respondent to use its mark and that Respondent is not commonly known by the disputed domain name. Complainant asserts that the domain name formerly resolved to a page that displayed pay-per-click sponsored listings, including one that used Complainant’s name in a sponsored link, until Complainant sent a cease-and-desist letter to Respondent; since that time, the domain name has resolved to a page entitled “Document and Data Management” and stating that the site is under construction. Complainant alleges that Respondent is not using the domain name in connection with a bona fide offering of goods or services, nor making a legitimate noncommercial or fair use of the domain name, but rather is attempting to pass itself off as Complainant and trade off of the reputation and goodwill associated with Complainant’s mark and to misleadingly divert traffic from Complainant’s website for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.”).
The disputed domain name is identical to Complainant’s registered trademark, but for the addition of the geographic term “Aspen” and the “.com” top-level domain. These additions do not substantially diminish the similarity with Complainant’s mark. See, e.g., Lockheed Martin Corp. v. Mr Healrd Diviolrg, FA1562892 (Nat. Arb. Forum July 1, 2014) (finding <lockheedmartincorporationusa.com> confusingly similar to LOCKHEED MARTIN); Diners Club Intl. Ltd. v. GDCash LLC, FA 1272949 (Nat. Arb. Forum Aug. 21, 2009) (finding <albuquerquedinersclub.com>, <atlantadinersclub.com>, <denverdinersclub.com>, and 33 similar domain names confusingly similar to DINERS CLUB). The Panel finds that the disputed domain name is confusingly similar to Complainant’s LOCKHEED mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s distinctive mark and corresponds to a shortened form of the name of one of Complainant’s subsidiaries. The domain name was registered without Complainant’s authorization and, presumably, for the purpose of profiting by confusion with Complainant or its subsidiary. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
A domain name may be so closely connected with a well-known trademark that its very use suggests opportunistic bad faith. See, e.g., Chevron Intellectual Property LLC v. Tim Bruce, FA1544867 (Nat. Arb. Forum Mar. 26, 2014) (finding opportunistic bad faith in registration of <texaco-oil-us.com>). In the Panel’s view, Respondent’s registration and use of a domain name incorporating Complainant’s famous mark, in a form seemly calculated to create confusion—and without any plausible alternative explanation—are indicative of bad faith for purposes of paragraphs 4(b)(iii) and 4(b)(iv) of the Policy.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lockheedaspen.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 23, 2014
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