Complainant is Raytheon Company of Waltham, Massachusetts, United States of America, represented by Ladas & Parry LLP, United States of America.
Respondent is John Howe of Sudbury, Massachusetts, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 16, 2010. On August 17, 2010, the Center transmitted by e-mail to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On August 18, 2010, GoD, Inc. transmitted by e-mail to the Center its verification response, confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on August 19, 2010. Details of attempted delivery are set out in Section 6-A below. In accordance with the Rules, paragraph 5(a), the due date for Response was September 8, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 10, 2010.
The Center appointed Richard G. Lyon as the sole panelist in this matter on September 23, 2010. The Panel finds that it was properly constituted. The Panel has submitted his 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
Complainant is a major worldwide provider of technical products and services in many different fields, most of them involving electronics, aviation and aeronautics, and defense. Its total revenues last year exceeded USD 22 billion. Complainant holds more than 150 trademarks for RAYTHEON registered with appropriate local governmental authorities around the world. The earliest of these trademarks in the United States, Respondents home jurisdiction, lists a first use in commerce of 1946.
Respondent registered the disputed domain name in April 2004. The disputed domain name currently resolves to a pay-per-click website that contains hyperlinks to, among others, both “Raytheon contractors” and “Raytheon jobs “. Under a “related searches“ section of the website at the disputed domain name are hyperlinks that, if followed, will take an Internet user to sites operated by several of Complainant’s competitors. No information on earlier use of the disputed domain name is available from the Complaint or from the Internet archive.
Complainant sent Respondent a cease-and-desist letter in September 2009 but received no reply. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical to its company name, in which it has common law trade law mark rights, and confusingly similar to its many RAYTHEON trademarks; that Respondent lacks rights or any legitimate interests in the disputed domain name; and that Respondent registered and has used the disputed domain name in bad faith. Addressing the six-year passage of time between registration of the disputed domain name and commencement of this proceeding, Complainant argues that “laches does not properly apply in proceedings under the Policy.” B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Unlike civil litigation in the United States, Respondent’s failure to submit a response to the Complaint does not result in the Policy equivalent of a default judgment or concede the accuracy of any factual matter alleged in the Complaint. See Kellwood Company v. Onesies Corporation,WIPO Case No. D2008-1172. Complainant still must prove each of the required Policy elements with competent evidence. A. Jurisdiction
Before turning to the merits, as in any default case the Panel must first examine its own jurisdiction. Paragraph 2(a) of the Rules provides:
(a) When forwarding a complaint, including any annexes, electronically to Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility:
(i) sending Written Notice of the complaint to all postal-mail and facsimile addresses (A) shown in the domain name's registration data in Registrar's Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration's billing contact; and
(ii) sending the complaint, including any annexes, in electronic form by e-mail to:
(A) the e-mail addresses for those technical, administrative, and billing contacts;
(B) postmaster@; and
(C) if the domain name (or "www." followed by the domain name) resolves to an active web page (other than a generic page the Provider concludes is maintained by a registrar or ISP for parking domain-names registered by multiple domain-name holders), any e-mail address shown or e-mail links on that web page; and
(iii) sending the complaint, including any annexes, to any e-mail address Respondent has notified the Provider it prefers and, to the extent practicable, to all other e-mail addresses provided to the Provider by Complainant under Paragraph 3(b)(v).
Following its customary practice, the Center in this case dispatched by post-courier a hard copy of the Complaint to Respondent at the address set out in the contact details provided by the Registrar and simultaneously sent a copy by electronic mail to Respondent, again at the address shown in the Registrar’s contact details. The copy sent by courier was never delivered; the courier reported “RECEIVER MOVED, NOT DELIVERED”. The e-mail copy sent as provided in paragraph 2(a)(ii)(b) of the Policy electronically bounced; “The recipient's e-mail address is invalid. Microsoft Exchange will not try to redeliver this message for you,” with diagnostic information following.
While actual delivery may not have occurred, the Panel is satisfied that the Center did “employ reasonably available means calculated to achieve actual notice to Respondent”, as required by paragraph 2(a). Indeed no other means of delivery appears to have been available to the Center. Any failure to achieve actual notice resulted from Respondent’s failure to provide or update his contact information with the registrar, in breach of his obligation under the registration agreement.1 This Panel has jurisdiction to determine this Policy dispute. B. Identical or Confusingly Similar
Other than the top level domain identifier gTLD “.com”, which is not considered in evaluating identity or confusing similarity, the disputed domain name is identical to Complainant’s company name and confusingly similar to its trademarks. Complainant has established this Policy element. C. Rights or Legitimate Interests
Complainant has proven with competent evidence that Respondent has never been known by the disputed domain name or any other name that includes the word “raytheon", and that Complainant has never licensed Respondent to use its marks. The burden of production thus shifts to Respondent to demonstrate rights or legitimate interests in the disputed domain name. Respondent has submitted no evidence on this subject, so Complaint has carried its burden of proof on this Policy element. D. Registered and Used in Bad Faith
Respondent’s use of the disputed domain name, for pay-per-click links to Complainant and its competitors, clearly demonstrates bad faith under a host of Policy decisions. While there is no direct evidence of registration in bad faith in 2004, the Panel may look to the available evidence and, if appropriate, infer registration in bad faith from facts established in the record.
So far as the evidence submitted with the Complaint and the Panel’s own investigation of publicly available information demonstrate, the current pay-per-click site is the only use to which disputed domain name has been put. Its content indicates that Respondent, at least recently, was aware of Complainant and Complainant’s trademarks. “Raytheon” is not a common word, and there is no explanation for its selection by Respondent other than to take advantage of the mark. That suffices2 for an inference that Respondent was aware of Complainant and its marks when it registered the disputed domain name in 2004. As this Panel recently stated in similar factual circumstances, “Even though such use apparently first occurred five years after registration, that fact [reference to the complainant in text on the disputed domain name], plus the obvious fact that the trademark at issue is distinctive and not a common word, allow the Panel to infer that registration of the disputed domain name did occur with knowledge of [c]omplainant’s trademark and intent by [r]espondent to take advantage of whatever goodwill attached to that mark.” Progman Consulting Oy v. Whois Watchdog,WIPO Case No. D2010-1393, citing Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
Complainant has carried its evidentiary burden under this final Policy element. E. Delay
It is reasonably well settled that no defense of laches or estoppels of standing only, is available in a Policy proceeding. See Progman Consulting Oy, supra, and cases there cited. In some instances indifference or inaction by a mark owner may enable a respondent to demonstrate that it has been commonly known by the disputed domain name or that it is making a legitimate use of it, but not in this case. Here the only use is an obvious free ride on the good will attached to Complainant’s marks. 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 Complainant.
Richard G. Lyon
Sole Panelist
Dated: October 1, 2010
Full & Egal Universal Law Academy