Leidos, Inc. v. Richard Ward
Claim Number: FA2009001911543
Complainant is Leidos, Inc. (“Complainant”), represented by Kandis M. Koustenis of Bean, Kinney & Korman P.C., Virginia, United States. Respondent is Richard Ward (“Respondent”), Virginia, United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <leidosdeeparchive.com> and <leidosdeeparchives.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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 8, 2020; the Forum received payment on September 8, 2020.
On September 10, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <leidosdeeparchive.com> and <leidosdeeparchives.com> 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 September 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 6, 2020 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@leidosdeeparchive.com, postmaster@leidosdeeparchives.com. Also on September 16, 2020, 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 9, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 offers services and goods across a variety of industry sectors. Complainant has rights in the LEIDOS mark due to its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,937,101, registered April 12, 2016). Respondent’s <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names are confusingly similar to Complainant’s LEIDOS mark. Respondent incorporates the mark in its entirety and adds the generic term “deep archive” or “deep archives” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names as Respondent is not commonly known by the disputed domain names nor did Complainant authorize Respondent to use the LEIDOS mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain names resolve to webpages that offer third-party links to other competing service providers.
Respondent registered and used the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names in bad faith as Respondent attempts to create a likelihood of confusion by using Complainant’s LEIDOS mark prominently in the disputed domain names.
B. Respondent
Respondent failed to submit a response to this proceeding. The Panel notes that the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names were registered on August 19, 2020.
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”).
Complainant claims to have rights in the LEIDOS mark due to its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant has provided the Panel with a copy of its USPTO registration for the LEIDOS mark (e.g. Reg. No. 4,937,101, registered April 12, 2016). Therefore, the Panel finds that Complainant has adequately shown rights in the mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names are confusingly similar to Complainant’s LEIDOS mark. Registration of a domain name that contains a complainant’s mark does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Here, Complainant argues that Respondent incorporates the mark in its entirety and adds the generic term “deep archive” or “deep archives.” Therefore, the Panel finds that Respondent’s domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant argues Respondent lacks rights or legitimate interest in the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names as Respondent is not commonly known by the disputed domain name, nor has Respondent been given license or consent to use the LEIDOS mark or register domain names incorporating Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Richard Ward,” and there is no other evidence to suggest that Respondent was authorized to use the LEIDOS mark or was commonly known by the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain names resolve to webpages that offer third-party links to other service providers. Use of a disputed domain name to resolve to a webpage that offers links to third-party service providers is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Disney Enters, Inc. v. Kamble, FA 918556 (Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent registered and used the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names in bad faith, as Respondent attempts to create a likelihood of confusion by using Complainant’s LEIDOS mark prominently in the disputed domain names. Use of a disputed domain name to create a likelihood of confusion with a complainant’s mark may be evidence of bad faith per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Here, Respondent incorporates the entirety of the LEIDOS mark in the disputed domain names in an attempt to confuse internet users into thinking that Respondent is affiliated with Complainant. Therefore, the Panel finds that the disputed domain names were registered in bad faith per Policy ¶ 4(b)(iv).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leidosdeeparchive.com> and <leidosdeeparchives.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: October 21, 2020
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