Lockheed Martin Corporation v. Robert Weakley / Indus
Claim Number: FA1607001684204
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Sarah E. Bro of McDermott Will & Emery LLP, California, USA. Respondent is Robert Weakley / Indus (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <420skunkworks.com>, <420skunkworks.info>, <420skunkworks.net>, <420skunkworks.org>, <710skunkworks.com>, <710skunkworks.info>, <710skunkworks.net>, and <710skunkworks.org> (the‘Domain Names’) registered with GoDaddy.com, 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.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 18, 2016; the Forum received payment on July 18, 2016.
On July 18, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <420skunkworks.com>, <420skunkworks.info>, <420skunkworks.net>, <420skunkworks.org>, <710skunkworks.com>, <710skunkworks.info>, <710skunkworks.net>, and <710skunkworks.org> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 July 19, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 2016 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@420skunkworks.com, postmaster@420skunkworks.info, postmaster@420skunkworks.net, postmaster@420skunkworks.org, postmaster@710skunkworks.com, postmaster@710skunkworks.info, postmaster@710skunkworks.net, and postmaster@710skunkworks.org. Also on July 19, 2016, 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 August 15, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant’s contentions can be summarized as follows:
Complainant has numerous trademark registrations and common law rights in the mark SKUNK WORKS for services relating to military aircraft and, through its predecessor in interest Lockheed Corporation.,has used this mark since as early as 1945 with the earliest registration dating back to 2001. It also owns numerous domain names containing this mark.
Complainant also licenses others to use its mark on clothing, toys and novelties, office and home goods, meaning the mark has acquired fame and distinctiveness amongst ordinary consumers as well as Complainant’s government and defense customers assisted by books, television programs and articles about Complainant.
The Domain Names are confusingly similar to Complainant’s SKUNKWORKS mark and its domain at skunkworks.com registered since 1996. The Domain Names incorporate Complainant’s mark SKUNKWORKS and then merely add the numbers ‘420’ or ‘710’. Addition of random characters to a trade mark in a domain name fails to negate confusing similarity. Further the addition of the gTLDs ‘.com’, ‘.info’, ‘.net’ and ‘.org’ and the removal of the space between ‘skunk’ and ‘works’ cannot distinguish the Domain Names from Complainant’s marks.
Complainant’s mark is not a generic or descriptive term. Complainant’s marks have acquired distinctiveness through Complainant’s substantial continuous and exclusive use in relation to its services and goods.
Respondent is not commonly known by the Domain Names. Respondent has not been licensed or permitted to use Complainant’s mark. Respondent is not making a legitimate noncommercial fair use of the Domain Names. The Domain Names currently resolve to web sites that provide various sponsored click through links which direct Internet users to third party commercial web sites.
No responses were received to cease and desist letters sent by Complainant’s representation to Respondent.
Respondent is using Domain Names to redirect Internet users to commercial web sites where Respondent provides various sponsored click through links that direct to third party commercial web sites. Respondent has registered the Domain Names with the intent to attract Internet users to its web sites for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, facilitation or endorsement of Respondent’s web sites for commercial gain and has not used them for any other purpose. They are also blocking registrations.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trade mark rights for SKUNK WORKS for services related to military aircraft and a variety of consumer goods and merchandise registered first in time for its services in 2001, but used in commerce for its services since 1945.
The Domain Names registered by Respondent in 2016 have been attached to link farms advertising third party services and goods not related to Complainant.
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.”).
Identical and/or Confusingly Similar
The Domain Names each consist of Complainant's SKUNKWORKS mark, the generic numbers '420’ or ‘710’ and a gTLD.
Panels have found confusing similarity where numerals were added to a mark in a domain. See Omnitel Pronto Italia SpA v. Bella, D2000-1641 (WIPO Mar. 12, 2001) (finding that the contested omnitel2000.com domain name is confusingly similar to the Omnitel trade mark).
gTLDs do not serve to distinguish a domain name from a mark which is the distinctive component of the domain name in question as SKUNK WORKS is in the Domain Names in this dispute. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Respondent does not appear to be commonly known by the Domain Names, and is not making a legitimate noncommercial or fair use of them. The sites attached to the Domain Names appear to be set up for commercial benefit to compete with Complainant using the latter's intellectual property rights to make a profit by pointing to third party links competing with Complainant's services. See ALPITOUR SpA v. Albloushi FA 888651 (Forum Feb. 26, 2007) (rejecting the Respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy).
As such, the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Names and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent's use of the sites attached to the Domain Names is commercial and Respondent is using them to make a profit from linking to third party web sites in a confusing manner. The Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to Respondent’s websites by creating the likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web sites. See Dovetail Ventures LLC v. Klayton Thorpe, FA 1506001625786 (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 gained).
As such, the Panel holds that Complainant has made its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <420skunkworks.com>, <420skunkworks.info>, <420skunkworks.net>, <420skunkworks.org>, <710skunkworks.com>, <710skunkworks.info>, <710skunkworks.net>, and <710skunkworks.org> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 17, 2016
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