Lockheed Martin Corporation v. Zhichao Yang
Claim Number: FA1701001714221
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E Bro of McDermott Will & Emery LLP, United States of America. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <searchlockheedmartinjobs.com>, registered with NameSilo, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 25, 2017; the Forum received payment on January 25, 2017.
On Jan 26, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <searchlockheedmartinjobs.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2017 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@searchlockheedmartinjobs.com. Also on January 27, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 states that it is a global security and aerospace company that employs approximately 98,000 people worldwide. It is engaged in the research, design, development, manufacture, integration, and sustainment of advanced technology systems, products, and services. Complainant is number 60 on the 2016 listing of U.S. Fortune 500 companies, and number 197 on the 2016 Fortune Global 500 list. Complainant has rights in the LOCKHEED MARTIN mark based upon numerous registrations in the United States and elsewhere around the world, with rights dating back to 1999. Complainant’s mark is famous.
Complainant alleges that the disputed domain name is confusingly similar to its LOCKHEED MARTIN mark, as the domain name contains the mark in its entirety—less the space—and merely adds the generic terms “search” and “jobs,” and the generic top-level domain name (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the LOCKHEED MARTIN mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a website that provides various sponsored click-through links. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent has registered and used the disputed domain name with the intent to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Additionally, Respondent has failed to develop or use the domain name for a legitimate purpose, despite having owned it for nearly three months. Further, given the well-known status of Complainant’s marks and domains, it is clear Respondent had actual or constructive knowledge of Complainant’s rights in the LOCKHEED MARTIN mark at the time it registered and subsequently used the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark LOCKHEED MARTIN dating back to at least 1999. The mark is famous.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains sponsored links to unrelated third-party commercial 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."
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(f), 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 (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 confusingly similar to Complainant’s LOCKHEED MARTIN mark, as the domain name contains the mark in its entirety—less the space—merely adding the generic terms “search” and “jobs,” and the gTLD “.com.” Omission of a space from a mark and addition of a gTLD are both irrelevant in a Policy ¶ 4(a)(i) analysis for confusing similarity. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Also, addition of generic terms does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).). Accordingly, the Panel finds the disputed domain name to be confusingly similar to Complainant’s LOCKHEED MARTIN mark pursuant to Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the LOCKHEED MARTIN mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. As a result, the Panel notes that the WHOIS information of record identifies Respondent as “Zhichao Yang.” Lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent’s lack of rights or legitimate interests in the disputed domain name is further evinced by its failure to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. The disputed domain name resolves to a website which hosts links to search pages or third-party commercial websites. Use of a disputed domain name to link to unrelated third-party websites is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum August 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”); see also Harvey Norman Retailing Pty Ltd v. gghome.com Pty Ltd, D2000-0945 (WIPO Sep. 25, 2000). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to host a webpage which promotes and displays links to unrelated third-party commercial websites. Respondent presumably derives click-through revenue from the links on that website. Use of a disputed domain name to host links to unrelated commercial web pages for commercial gain is evidence of bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Speedo Holdings B.V. v. Tyrone L Glenn-Bus, D2003-0440 (WIPO Jul. 30, 2003); see also Harvey Norman Retailing Pty Ltd v. gghome.com Pty Ltd, D2000-0945 (WIPO Sep. 25, 2000). The Panel therefore finds Respondent to have registered and used the disputed domain name pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <searchlockheedmartinjobs.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 28, 2017
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