WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lockheed Martin Corporation v. Shunk Works Aviation
Case No. D2004-0823
1. The Parties
The Complainant is Lockheed Martin Corporation of Bethesda, Maryland, United�States of America, represented by Duane Morris LLP of Hamilton, New Jersey, United States of America.
The Respondent is Shunk Works Aviation of Keo, Arkansas, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT trading as Internet Name Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on October 7, 2004. On October 8, 2004, the Center transmitted by email to Melbourne IT trading as Internet Name Worldwide a request for registrar verification in connection with the domain name at issue. On October 12, 2004, Melbourne IT trading as Internet Name Worldwide transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 13, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was November�2, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 4, 2004.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on November 24, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
4.1 Complainant is a well known manufacturer of defense and aviation products.
4.2 Complainant is the owner of numerous United States trademark and service mark registrations for SKUNK WORKS and a related skunk design, in 11 International Classes.i Complainant’s SKUNK WORKS mark has been in continuous use by Complainant, and its predecessor-in-interest, since the mid-1940s.
In addition to the United States trademark and service mark registrations, Complainant owns registrations for SKUNKWORKS in Argentina, Australia, China, the European Community, Israel, Japan, the Republic of Korea, Mexico, New Zealand and Taiwan, Province of China.
4.3 Complainant says it is actively involved in licensing others to use its mark on products other than those for which registration has been obtained. However, Complainant did not specify these additional goods other than they are “goods for consumer use.”
4.4 The Complainant owns numerous domain names containing SKUNK WORKS or a variation thereof, in addition to the domain name , which it obtained by a recent decision and an order of transfer.ii
4.5 The Respondent is located in Keo, Arkansas, United States of America. Although no Response was filed to this Complaint, on October 26, 2004, the Center forwarded an e-mail to Ms. Goldsmith, Attorney for Complainant, which e-mail, intended for Ms.�Goldsmith, had been sent to domain.dispute@ on October 18, 2004, from the Respondent. The e-mail read as follows:
Ms. Goldsmith
I receipt your complaint and mailed you a letter but somehow it was returned.
Eric
4.6 The Domain Name In Issue
The domain name in issue was registered by the Respondent on January 31, 2002. The web site using the domain name is active, although still under construction.
5. Parties’ Contentions
A. Complainant
Identical or Confusingly Similar
Complainant alleges that the domain name incorporates in its entirety the Complainant’s registered mark SKUNK WORKS and that the Respondent has simply added “aviation” to the trademark. Complainant alleges that the domain name on its face involves aviation and that the Respondent’s website displays numerous pictures of airplanes used for commercial purposes.
Rights or Legitimate Interests
Complainant asserts that it is entitled to a presumption of ownership, validity and the exclusive right to use the mark in connection with the goods and services named in the registration certificates and that the Respondent has no rights or legitimate interests in respect of the domain name.
Complainant further asserts that the Respondent registered the domain name on or about January 31, 2002, decades after the adoption of the SKUNK WORKS mark by Complainant and after numerous trademark registrations had been obtained; that the domain name is for an active site that is still under construction; that the site is used to show images of crop-dusting aircraft, and is used for a commercial purpose connected to aviation; that Respondent is not “commonly” known by the domain name at issue; and that Respondent has not been authorized to register or use a domain name incorporating the registered mark SKUNK WORKS or any variant thereof.
Complainant states that the Respondent is not making any legitimate non-commercial or fair use of the domain name, which is confusingly similar to its registered mark and that the Respondent has used the domain name for commercial gain, misleadingly to divert purchasers and/or to tarnish the mark of the Complainant.
Registered and Used in Bad Faith
Complainant alleges that it had well-documented trademark rights long prior to the domain names being used by the Respondent; that registration of its mark serves as constructive notice of a claim of ownership of the mark; that by letter dated September�9, 2004, the Respondent was notified that the Complainant has rights in the mark SKUNK WORKS, and was asked to transfer the domain name to the Complainant and that, as of the date of this filing, Complainant had received no return correspondence from Respondent; that Respondent did subsequent to the September�9,�2004 letter from Complainant, post the following disclaimer on the homepage:
“SkunkWorksAviation is in no way affiliated with Lockheed Martin’s Skunk Works. We apologize for any confusion.”
Complainant alleges that the posting of this disclaimer shows that the Respondent is well aware that there is a likelihood of [confusion] between and its famed SKUNK WORKS [mark]; that Respondent’s continued operation of the site coupled with his unwillingness to respond to the recent request to transfer the domain name contribute to a showing of bad faith.
Complainant further contends that the addition of a generic word to the registered mark SKUNK WORKS (or its phonetic equivalent) does not give a commercial impression different from SKUNK WORKS by itself.
Complainant states that Respondent is not connected to or affiliated with the Complainant’s business in any way, nor is it licensed to use a variant of the SKUNK WORKS mark owned by Complainant; that Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s web site, 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 of the products or services on the Respondent’s web site; that prospective purchasers are likely to be confused when they search the Internet for services and products and find the domain name ; that Complainant will be irreparably harmed by the confusion and deception of persons within the relevant purchasing classes, resulting from Respondent’s use of the domain name ; that Respondent’s registration and use of puts the valuable good will associated with the Complainant’s mark at risk; that prospective purchasers are likely to be deceived into believing that Respondent’s web site and any products or services provided by the Respondent are or were endorsed, sponsored or otherwise connected with the Complainant and SKUNK WORKS brand products and services, and as a consequence is likely to divert purchasers and potential licensees of the mark away from Complainant.
Complainant states that Respondent’s registration of the domain name was made in bad faith, and the domain name has been and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Even though the Center gave Respondent sufficient notice under paragraph 2(a) of the Rules, Respondent has not responded to the Complaint. Where respondent does not respond to the complaint, the Panel shall decide the dispute based upon the complaint. Rules, paragaph 5(e), paragraph 14(a). The Complaint is to be decided on the basis of the statements and documents submitted. Rules, paragraph 15(a). Under Rule 14(b), Respondent’s failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate.”
A. Identical or Confusingly Similar
The Panel finds that the challenged domain name is confusingly similar to Complainant’s registered mark because it incorporates Complainant’s entire mark. Respondent has simply added “aviation,” which serves only as a generic description of the Respondent’s business. Lockheed Martin Corporation v. NBPro Hosting, WIPO Case No. D2003-0859. Respondent’s disclaimer is not effective to prevent confusion or a finding of bad faith use. Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698.
B. Rights or Legitimate Interests
The Respondent did not respond to the Complaint. The Panel finds that Respondent has no rights or legitimate interests in respect of the challenged domain name as there is no evidence to the contrary in the record and the Complainant has made out a prima facie case that Respondent lacks legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the challenged domain name in bad faith. Complainant’s allegations of bad faith are not contested. Respondent was on notice of Complainant’s trademark rights when it registered the domain name that is the subject of this Complaint. The Panel accepts Complainant’s uncontradicted assertion that Respondent intentionally attempted (for commercial gain) to attract Internet users to the Respondent’s web site, 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 of the products or services on the Respondent’s web site.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Lawrence K. Nodine
Sole Panelist
Dated: December 9, 2004
i
MARK
U.S. REG. NO.
DATE REG.
CLASS
GOODS OR SERVICES
SKUNK WORKS
2652258
11/19/2002
40
Manufacturing products for others, namely, missiles, land vehicles, aircraft, boats, missile launchers, satellites, shuttle vehicles, telescopes, weapons, frigates, navigational systems, reconnaissance systems, targeting systems and information systems
42
Design and testing of new products for others
SKUNK WORKS
1161482
7/14/1981
42
Engineering technical consulting, and advisory services with respect to designing, building, equipping, and testing commercial and military aircraft and related equipment
SKUNK WORKS
2621790
9/17/2002
9
Blank magnetic data carriers; computer disks, namely, floppy disks and hard disks; calculators; data processors and computers; fire extinguishers; computer hardware peripherals, namely, mouse pads; decorative refrigerator magnets; pre-recorded video cassettes featuring military aviation history, military and commercial aircraft, and defense industry related content; and satellites; computer hardware and software for commercial and military use in the fields of navigation, reconnaissance, weapon targeting and telecommunications
SKUNK WORKS
2532722
1/22/2002
14
Precious metals and their alloys and goods in precious metals or coated therewith; jewelry; precious stones; horological and other chronometric instruments, namely, clocks, stop watches, wrist watches, pocket watches, belt buckles of precious metal, watches, tie tacks, tie bars, earrings and charms
SKUNK WORKS
2488844
9/11/2001
8
Pocket knives, cutlery, namely kitchen knives, butcher knives, tableware, namely, forks, knives and spoons, side arms, not including firearms, namely, hunting knives and swords; razors
SKUNK WORKS
2511054
11/20/2001
16
Paper and office requisites namely, stationery, envelopes, notebooks, notepads, wrapping paper, desk pads, adhesive backed notes, mailing containers, namely, plastic bags for merchandise packaging, cardboard mailing tubes; printed matter namely, greeting cards, envelopes, calendars, appointment books, children’s books, mounted photographs, posters, postcards, playing cards, folders, notebooks, binders, notepads, decals, rubber stamps; cardboard boxes, adhesives for stationery or household purposes; artists’ materials namely paint brushes; electric typewriters; printers’ type printing blocks; pencils, pens, letter openers, pogs, printed teaching materials in the field of military aviation history, military and commercial aircraft and the defense industry, books featuring military aviation history, military and commercial aircraft and the defense industry
SKUNK WORKS
2559574
4/9/2002
18
Bags, namely, all purpose sport bags, shoulder bags, tote bags, travel bags, book bags, handbags; backpacks, bill folds, wallets, coin purses, fanny packs, waist packs, leather key fobs, pocketbooks, and umbrellas
SKUNK WORKS
2532721
1/22/2002
21
Household or kitchen utensils and containers not of precious metal or coated therewith namely, bottle openers, hair combs, hair brushes, household sponges, beverage glassware, porcelain and earthenware containers for household use and drinking glasses
SKUNK WORKS
2759221
9/2/2003
25
Clothing and headgear, namely, sweatshirts, t-shirts, tank tops, polo shirts, shorts, baseball caps, tops, bottoms, jackets and ties
SKUNK WORKS
2511053
11/20/2001
26
Cloth patches for clothing
SKUNK WORKS
2507836
11/13/2001
28
Games, playthings and sporting articles, namely, scale model and miniature replicate airplanes, stuffed toy animals, flying toss discs and yo-yos
ii
(ordered transferred to complainant pursuant to WIPO Case No. D2000-0799)
(ordered transferred to complainant pursuant to WIPO Case No. D2004-0235)
(ordered transferred to complainant pursuant to WIPO Case No. D2003-0859)
(ordered transferred to complainant pursuant to WIPO Case No. D2000-0799)
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