Lockheed Martin Corporation v. ying jie li
Claim Number: FA1908001860177
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Naresh Kilaru of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is ying jie li (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwlockheedmartin.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2019; the Forum received payment on August 30, 2019.
On September 2, 2019, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <wwwlockheedmartin.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 September 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 2019 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@wwwlockheedmartin.com. Also on September 9, 2019, 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 October 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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
The Complainant is the world’s largest defense contractor and a global security and aerospace company that employs approximately 100,000 people worldwide. Complainant has rights in the LOCKHEED MARTIN trademark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,022,037, registered Dec. 10, 1996). Respondent’s <wwwlockheedmartin.com> domain name is confusingly similar to Complainant’s LOCKHEED MARTIN trademark as it incorporates the trademark in its entirety, merely omitting the space with the trademark, along with the letters “www” and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <wwwlockheedmartin.com> domain name. Respondent is not authorized to use Complainant’s LOCKHEED MARTIN trademark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a pornographic website. Respondent also engages in typosquatting by registering a domain name with the letters “www,” which is confusingly similar to Complainant’s domain name <www.lockheedmartin.com>.
Respondent registered and uses the <wwwlockheedmartin.com> domain name in bad faith. Respondent had actual and constructive knowledge of Complainant’s rights in the LOCKHEED MARTIN trademark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the LOCKHEED MARTIN trademark through the:
United States trademark No. 2,788,897 LOCKHEED MARTIN (word), registered December 2, 2003 for goods in class 12.
The disputed domain name <wwwlockheedmartin.com> was registered on March 3, 2019.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Preliminary Issue: Language of Proceeding
The Panel notes that the Complainant requests that the language of this administrative proceeding shall proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Chinese language Registration Agreement. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. UDRP Rule 10 (b) states that in all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case. The UDRP Rule 10 (c) states that the Panel shall ensure that the administrative proceeding takes place with due expedition.
The Panel has taken into consideration that the Respondent did not file a response, and thereby also failed to argue that the language of proceeding should be in Chinese language. Although this is not enough alone to treat English as the language of proceeding, it is one indicator that Respondent accepts English.
Here, it shall also be duly noted that the Forum has, on October 1, 2019, communicated in Chinese with the Respondent, informing of the appointment of the Panelist, due date for the Administrative Hearing, and how the parities shall communicate with the Forum – still resulting in no actions or communications from the Respondent. This is a further indication that Respondent has chosen to not make any Response at all, independent of the language of the proceeding.
The Panel further notes that the disputed domain name clearly includes the English version of the Complainant’s company name and trademark, indicating that the disputed domain name was registered with a more international (English spoken) audience in mind, with knowledge of Complainant’s trademark. See, e.g., H-D U.S.A., LLC v. WHOIS PROXY by ULTRADOMAIN / ULTRA-DOMAIN, Case No. FA1512001651547 (NAF Jan. 7, 2016) (“The disputed domain name [<harley-davidson-club.org>] is a well-known mark in the English language. Consequently, the Panel determines that the remainder of the proceedings may be conducted in English”).
The Panel has weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party, together with the other referred facts and indications in the case. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Complainant claims rights in the LOCKHEED MARTIN trademark based upon registration of the trademark with the USPTO (e.g., Reg. No. 2,022,037, registered Dec. 10, 1996). Registration of a trademark with the USPTO is sufficient to establish rights in that trademark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the LOCKHEED MARTIN trademark with the USPTO is sufficient to establish rights in the trademark under Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <wwwlockheedmartin.com> domain name is confusingly similar to the LOCKHEED MARTIN trademark, as the name incorporates the trademark in its entirety, merely omitting the space, and adds the letters “www” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Citizens Financial Group, Inc. v. Paul Taylor, FA 1714579 (Forum Mar. 14, 2017) (“Similarly, addition of the letters “www” to the beginning of a mark in order to from a domain name does not distinguish the domain name for the purposes of a Policy ¶ 4(a)(i) analysis for confusing similarity.”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Also, the only technical way to register a two-word trademark as a domain name is to either use a hyphen between the two words, or – as in this case – write the two words as one word. The Panel therefore determines that the <wwwlockheedmartin.com> domain name is confusingly similar to the LOCKHEED MARTIN trademark per Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <wwwlockheedmartin.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the LOCKHEED MARTIN trademark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “ying jie li,” and no information on the record indicates that Respondent was authorized to register a domain name incorporating Complainant’s trademark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <wwwlockheedmartin.com> domain name.
Complainant further argues that Respondent’s lack of rights or legitimate interests in the <wwwlockheedmartin.com> domain name is demonstrated by its failure to use the domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent’s disputed domain name resolves to a pornographic website. Use of a disputed domain name to redirect users to a pornographic website may not amount to a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”); see also Tumblr, Inc. v. Srivathsan GK, FA1409001582401 (Forum Oct. 30, 2014) (“Consequently, the Panel finds that Respondent’s use of the disputed domain name for adult-oriented images also does not provide a bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).”). Complainant provides a screenshot of the disputed domain name’s resolving website which depicts adult-oriented content. The Panel therefore agrees with Complainant and finds that Respondent fails to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant further contends that Respondent’s <wwwlockheedmartin.com> domain name is a typosquatted version of Complainant’s domain name, <www.lockheedmartin.com>, and this indicates a lack of rights or legitimate interests. Intentional misspelling of a complainant’s trademark in order to divert users to a disputed domain name’s resolving website may evince a finding that the respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”); see also Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). The Panel therefore finds that Respondent lacks rights or legitimate interests in the disputed domain name per Policy ¶ 4(a)(ii).
The Panel notes that Complainant does not make any arguments that would fall under Policy ¶ 4(b). However, these arguments are merely illustrative rather than exclusive to support a finding of bad faith. See Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are mere illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). As such, the Panel finds that Complainant’s Policy ¶ 4(a)(iii) arguments are sufficient to support a finding of bad faith.
Complainant first argues that Respondent’s use of the <wwwlockheedmartin.com> domain name to host a pornographic website is evidence of Respondent’s bad faith. Use of a disputed domain name to redirect users to a website containing adult-oriented content may evince a finding of bad faith under Policy ¶ 4(a)(iii). See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA1312001534740 (Forum Jan. 31, 2014) (“Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant’s HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content.”); see also Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”). The Panel recalls that Complainant provides a screenshot of the disputed domain name’s resolving website which depicts adult-oriented content. The Panel therefore agrees with Complainant and finds that this use constitutes bad faith per Policy ¶ 4(a)(iii).
Next, Complainant claims that Respondent’s registration of the <wwwlockheedmartin.com> domain name is a typosquatted version of Complainant’s domain name, <www.lockheedmartin.com>, and this indicates bad faith. Typosquatting may constitute bad faith per se under a Policy ¶ 4(a)(iii) analysis. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Although in this case, the typosquatting is more related to Complainant’s official domain name, rather than the pure trademark per se, the Panel also note that the trademark is indeed included clearly in <wwwlockheedmartin.com> .The Panel therefore find Respondent’s registration of the disputed domain name constitutes bad faith per Policy ¶ 4(a)(iii).
Complainant also contends that in light of the fame and notoriety of Complainant's LOCKHEED MARTIN trademark, it is inconceivable that Respondent could have registered the <wwwlockheedmartin.com> domain name without actual and constructive knowledge of Complainant's rights in the trademark. The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwlockheedmartin.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: October 15, 2019
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