Lockheed Martin Corporation generated almost $60 billion dollars in revenue in 2019; the American aerospace, arms, defense, security, and advanced technologies company has worldwide interests.
One of its top military airplanes is the F-35 which was first produced in 2006. Lockheed Martin operates a dedicated web site for its fighter jet at F35.com, but the trademarked term is F-35.
The domain F-35.com was registered in 2000, making it 21 years old. The domain is 3 years senior to the trademark that was issued to Lockheed Martin in late 2003 but the company’s obligated to defend its trademark and filed a UDRP at the National Arbitration Forum.
According to the findings:
Complaint Exhibit 20 is an analysis of the Domain Name prepared for Complainant by Domain Tools as of February 3, 2021 which states among other things that there are some “55 distinct historical ownership records for F-35.com. The oldest dates from June 12, 2003.” Complaint Exhibit 21 is a screenshot history for the Domain Name, which shows that at various times since November 2002 the Domain Name has resolved to web sites that are either inactive or contain pay-per-click links to web sites both related and unrelated to Complainant’s business. The most recent screenshot shown on Exhibit 21 is dated as of October 27, 2017 and shows that the web site is inactive.
The sole panelist perused historical WHOIS records obtained from DomainTools and came to the conclusion they are not the same person who registered the domain F-35.com in 2000. Furthermore, emails sent to the contact by the Complainant bounced back. The panelist stated that this indicates the Respondent is using false WHOIS information, a violation of ICANN rules.
Final decision: transfer the domain F-35.com to the Complainant.
Lockheed Martin Corporation v. Richard Moore
Claim Number: FA2102001931732
PARTIES
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Jonathan Uffelman of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, District of Columbia, USA. Respondent is Richard Moore (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is , registered with GoDaddy.com, LLC.
PANEL
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.
Charles A. Kuechenmeister, Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on February 11, 2021; the Forum received payment on February 11, 2021.
On February 11, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the domain name (the 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 February 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of March 4, 2021 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@f-35.com. Also on February 12, 2021, 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 March 9, 2021, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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.
RELIEF SOUGHT
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is a well-known defense contractor and a global security and aerospace company primarily engaged in the research, design, development, manufacture, and sustainment of advanced technology systems, products, and services, including aircraft used for defense purposes. Complainant has registered its F-35 mark with the United States Patent and Trademark Office (USPTO). The Domain Name is identical to Complainant’s F-35 mark because it incorporates the mark in its entirety, merely adding a non-distinguishing generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the Domain Name. It has not commonly been known by the Domain Name and Complainant has not authorized Respondent to use the F-35 mark. Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate non-commercial or fair use. The Domain Name has been used for pay-per-click sites displaying links to businesses both related and unrelated to Complainant’s business, and it is currently inactive. Respondent has used a privacy service and false WHOIS contact information.
Respondent registered and uses the Domain Name in bad faith. The Domain Name has been used to attract users to a pay-per-click webpage displaying commercial hyperlinks both related and unrelated to Complainant’s business, and it is presently inactive. Respondent had actual knowledge of Complainant’s rights in the F-35 mark when it acquired the Domain Name, and Respondent has used a privacy service and false WHOIS contact information.
B. Respondent
Respondent did not submit a Response in this proceeding.
FINDINGS
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant’s undisputed representations and draw such inferences as 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
Identical and/or Confusingly Similar
The F-35 mark was registered to Complainant with the USPTO (Reg. No. 2,793,198) on December 9, 2003 (Complaint Exhibit 18). Complainant’s registration of its mark with the USPTO demonstrates its rights in that mark for the purposes of Policy ¶ 4(a)(i). Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s Domain Name is identical or confusingly similar to the F-35 mark because it incorporates the mark in its entirety, merely adding the “.com” gTLD. This change does not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). David Duchovny v. Alberta Hot Rods c/o Jeff Burgar, FA 1734414 (Forum July 4, 2017) (“Respondent arrives at the disputed domain name by simply taking Complainant’s mark in its entirety and adding the gTLD “.com”. This is insufficient to distinguish the disputed domain name from Complainant’s common law trademark.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the F-35 mark, in which Complainant has substantial and demonstrated rights.
Rights or Legitimate Interests
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent or commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not commonly known by the Domain Name, (ii) Complainant has not licensed or authorized Respondent to use its mark, (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because the web site resolving from them has displayed pay-per-click links to web sites both related and unrelated to Complainant’s business and is currently inactive, and (iv) Respondent has used a privacy service and false WHOIS contact information. These allegations are addressed as follows:
The information furnished to the Forum by the registrar lists “Richard Moore” as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(ii).
Complainant states that it has never authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
Complaint Exhibit 20 is an analysis of the Domain Name prepared for Complainant by Domain Tools as of February 3, 2021 which states among other things that there are some “55 distinct historical ownership records for F-35.com. The oldest dates from June 12, 2003.” Complaint Exhibit 21 is a screenshot history for the Domain Name, which shows that at various times since November 2002 the Domain Name has resolved to web sites that are either inactive or contain pay-per-click links to web sites both related and unrelated to Complainant’s business. The most recent screenshot shown on Exhibit 21 is dated as of October 27, 2017 and shows that the web site is inactive. Complainant alleges that it is currently inactive. Given the lengthy history of the Domain Name shown on Complaint Exhibit 21 and the fact that there is no evidence to the contrary, the Panel takes this allegation as true. It is well settled that using a confusingly similar domain name to host pay-per-click web sites and making no active use of a domain name are neither bona fide offerings of goods or services as contemplated by Policy ¶ 4(c)(i) nor legitimate noncommercial or fair uses as contemplated by Policy ¶ 4(c)(iii). Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees), Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has no rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Registration and Use in Bad Faith
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, at various times since at least as early as November 2002 the Domain Name has been used to attract, for commercial gain, Internet users to the registrant’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site, as described in Policy ¶ 4(b)(iv). The registrant has obtained commercial gain from its use of the Domain Name and the resolving web site to generate pay-per-click revenues. Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent’s web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Respondent’s use of the Domain Name is commercial also because the sponsors of the various web sites forwarded from Respondent’s web site benefit from the subsequent interest and purchases of those who visit the sites. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO, 2000) (finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial).
Secondly, at various times since at least as early as November 2002 the Domain Name has resolved to an inactive web site and currently does so. The failure to make any active use of a domain name is also evidence of bad faith. This does not fit within any of the circumstances articulated in Policy ¶ 4(b) but that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), 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 merely 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). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and UDRP panels have often held that failure to make active use of a domain name is evidence of bad faith. Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith).
Next, it is evident that Respondent had actual knowledge of Complainant and its mark when it acquired the Domain Name. The WHOIS report for the Domain Name submitted as Complaint Exhibit 2 shows that the Domain Name was created in the year 2000, which is prior to Complainant’s acquisition of its rights in the F-35 mark. For purposes of a UDRP bad faith analysis, however, the relevant date is the date on which the respondent acquired the domain name. EMindful Inc. v. Yao Chang, FA 1825435 (Forum Feb. 20, 2019) (“The date on which the current registrant acquired the Domain Name is the relevant date in assessing bad faith.”), Ass’n. of Junior Leagues Int’l Inc. v. This Domain Name May Be For Sale, FA 857581 (Forum Jan. 4, 2007) (determining that, even though the disputed domain name was registered earlier, the respondent’s rights in the disputed domain name began when the domain name was transferred to the respondent, which complainant’s rights in the mark predated). It is not possible to pinpoint the exact date on which the Respondent acquired ownership of the Domain Name. Nevertheless, based upon the lengthy and varied history of the ownership and use of the Domain Name as shown in Complaint Exhibits 20 and 21, with at least 55 distinct historical ownership records for the name since 2002, it is virtually certain that the Respondent is not the person who registered the Domain Name in 2000, and that it acquired the Domain Name long after 2001, when Complainant acquired rights in its F-35 mark (Complaint Exhibit 18 shows a filing date of November 12, 2001 for its USPTO Registration No. 2,793,198).
Complainant and its F-35 aircraft are known throughout the world and have been since at least 2001, when Complainant was selected to produce the aircraft for the Joint Strike Fighter concept (Complaint Exhibit 7). The term “F-35” is uniquely associated with a particular fighter aircraft. It was copied exactly into the Domain Name and at times directed pay-per-click links on the resolving web site to related businesses. The nonexclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith and registering an identical or confusingly similar domain name with actual knowledge of a complainant’s rights in an incorporated mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm’cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent’s contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant’s rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant and its rights in the F-35 mark when it acquired the Domain Name.
Finally, it is also evident that the registrant contact information currently shown on the WHOIS report is not correct. Upon learning of the existence of this Domain Name, Complainant’s counsel attempted to contact the Respondent at the addresses given in the WHOIS report. He called the telephone number listed there for the registrant and it was inactive. His email to the listed address bounced back (Complaint Exhibit 23). Again, in light of the non-exclusive nature of Policy ¶ 4(b), registering a domain name using false WHOIS contact information is evidence of bad faith for the purposes of Policy ¶ 4(a)(iii). Lockheed Martin Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, Case No. FA1908001859982 (Forum Sept. 28, 2019) (“Complainant believes Respondent registered the disputed domain names with false information as evidence by an email that Complainant sent but was undeliverable. See Compl. Ex. 15. The Panel agrees and finds that Respondent’s registration of the disputed domain names with false contact information is evidence of its bad faith per Policy ¶ 4(a)(iii).”); Lockheed Martin Corp. v. Richard Ambrose / Lockheedmartin, Case No. FA1810001813687 (Forum Nov. 21, 2018) (“Respondent registered the disputed domain name using false WHOIS contact information, and this can evince bad faith registration and use under Policy ¶ 4(a)(iii). . . . Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).”).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
March 15, 2021
