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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lockheed Martin Corp. v. Reid Harward
Case No. D2000-0799
Lockheed Martin Corporation ("Lockheed") commenced this administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy") and the Rules for Uniform Domain Name Dispute Resolution (the "UDRP Rules") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"). The Respondent is identified as Reid Harward whose contact address is Route 2 Box 168, Belington, West Virginia 26250, USA.
2. The Domain Names and Registrar
Respondent has entered into two Internet domain name service agreements dated September 29, 1999, and August 7, 2000, with Network Solutions, Inc. ("NSI"). NSI is both a registry and, in this case, a registrar located at 747 Third Avenue, New York, New York, USA and 505 Huntmar Park Drive, Herndon, Virginia, USA. The Respondent’s contracts with NSI provide, among other things, that Internet message traffic addressed to the domain names "skunkworx.net" and "mp3skunkworks.com" be routed to computers specified by Respondent. The disputed domain names in this case are, thus, "skunkworx.net" and "mp3skunkworks.com" maintained by NSI in its capacity as registrar.
3. Procedural History
Lockheed filed its Complaint with the Arbitration and Mediation Center of the World Intellectual Property Organization (the "Center") on or about July 15, 2000. The Complaint was signed by David W. Quinto of the law firm of Quinn Emanuel Urquhart Oliver & Hedges, LLP of Los Angeles, California. The Center received a response to the Complaint by e-mail from Mr. Harward, acting pro se, on August 18, 2000. On or about August 21, 2000, the Center received an Amended Complaint from Lockheed (Footnote 1). The Amended Complaint was similar to the original Complaint, except that it alleged the Respondent had registered the Internet domain name "mp3skunkworks.com" on August 7, 2000, and cited this as evidence of Respondent’s alleged bad faith. Respondent was notified of the Amended Complaint by e-mail and courier communication dated September 1, 2000. By September 27, 2000, the Center had received no response from Respondent to the Amended Complaint.
4. Factual Background
Before the Panel is an unverified Complaint signed by Lockheed’s outside counsel. The signer of the Complaint does not allege that he has personal knowledge of the facts alleged in the Complaint. The Respondent’s e-mail response to the Complaint is both unsigned and unverified. The Respondent has not addressed or controverted most of Lockheed’s allegations concerning its past use of SKUNK WORKS as a designation of origin. In reciting the factual background of this proceeding, the Panel relies on those of Lockheed’s factual allegations which Respondent has not denied, and those of Respondent’s allegations which strike the Panel as plausible and consistent with what documents the parties have made of record (Footnote 2).
It appears to be uncontroverted that since 1943, Lockheed has used the term SKUNK WORKS to identify an unincorporated division engaged in the design and manufacture of high performance military aircraft. Lockheed alleges, without contradiction, that SKUNK WORKS personnel designed the F-104 Star Fighter, the U2, the SR-71 Blackbird, the F-117 Stealth Fighter, the F-22 Advanced Tactical Fighter, and other well-known military aircraft including the nation’s first operational fighter jet. Lockheed further alleges, without contradiction, that the achievements of its SKUNK WORKS division have been the subject of numerous books, magazine articles, and reports on nationally broadcast television programs. Lockheed has registered and uses "skunkworks.com" and "skunkworks.net" to identify its business including the SKUNK WORKS division.
The Respondent appears to be an individual resident of the State of West Virginia. On September 29, 1999, Respondent registered the Internet domain name "skunkworx.net". The Respondent appears never to have pointed this name at any active web site. On August 7, 2000, following the commencement of this proceeding, Respondent registered the Internet domain name "mp3skunkworks.com". This name, too, appears never to have been pointed at any active web site.
In his e-mail response to the Complaint dated August 18, 2000, the Respondent states that "[f]or a good 2 years I’ve contemplated the idea of a space where the collective creation of audio could take place. This would be a dub workshop if you will." The Respondent further states that he has "created a number of MP3 rhythm pads which trigger sound samples for remix. All of this I have offered as freeware and within the public domain. I intended to point the domain name "skunkworx.net" at my http://www.mysys.net directory after beta-testing my site in preparation for a public launch before the start of school on the 25th of this month."
The Respondent referred the Panel to www.mysys.net "as evidence of my intention to offer free audio files of my work and MP3 rhythm pads that contain samples of my music over "skunkworx.net." During the pendency of this proceeding, however, the cited domain name was not pointed at any site. Further, Respondent offered no explanation, plausible or otherwise, for his adoption of "skunkworx.net" or "mp3skunkworks.com" as domain names, and made no contention that these names had any artistic relevance to the claimed "dub workshop" concept.
5. Parties’ Contentions
Lockheed contends that the disputed domain names are confusingly similar to its registered service mark, SKUNK WORKS. Lockheed further contends that Respondent has no rights or legitimate interests in respect to the accused domain names "skunkworx.net" or "mp3skunkworks.com". Finally, Lockheed contends that Respondent obtained and used the disputed domain names in bad faith.
Respondent contends that "anyone with a fundamental grasp of the English language can distinguish between SKUNK WORKS and ‘skunkworx.net’." Respondent further contends that he has legitimate interests in respect of the accused domain names as a consequence of his alleged development of audio files and MP3 "rhythm pads" at times in the past. Finally, Respondent denies that he registered or used the disputed names in bad faith. Respondent states that: "When I registered the ‘skunkworx.net’, I was not aware of Lockheed Martin’s trademark on SKUNK WORKS. In fact, until I received a letter from the complainant, I was operating on the idea that skunkworks was solely a generic term for an unofficial research project."
6. Discussion and Findings
A. The Evidentiary Standard for Decision
Section 4(a) of the Policy entitles a complainant, such as Lockheed, to seek an administrative transfer of a second level Internet domain name in the event that it "proves," to the satisfaction of the Panel, three predicates: (1) an accused domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (2) a registrant has no rights or legitimate interests in respect to the accused domain names; and (3) a registrant’s domain name has been registered and is being used in bad faith. A fact is "proved," for purposes of the Policy, when it is "more likely than not to be true based on the evidence." Ciccone v. Parisi, Case No. D2000-0847.
B. Similarity of the Disputed Domain Names and Complainant’s Mark
The Panel finds the disputed domain names are confusingly similar to the service mark SKUNK WORKS in which Lockheed has rights. ‘skunkworx’ is phonetically identical to SKUNK WORKS. Respondent has not denied that ‘mp3skunkworks’ is confusingly to SKUNK WORKS. The latter term is identical to Complainant’s registered mark with the prefix ‘mp3’, a well-known audio file format. Appending the prefix, "MP3," to SKUNKWORKS does not, in the Panel’s view, result in any term distinct from its component parts. ‘mp3skunkworks’ is merely Complainant’s registered service mark with the prefix ‘mp3’ added.
C. Lack of Rights or Legitimate Interests in Domain Name
Complainant has presented evidence which, while unverified, does tend to show that Respondent lacks any rights or legitimate interest in the disputed domain names. For his part, the Respondent has submitted no evidence, much less persuasive or credible evidence, that he has legitimate interests in the disputed domain names.
As noted above, the Respondent’s e-mail communication of August 18, 2000, asserts that he had "an intention to offer free audio files of my work and MP3 rhythm pads that contain samples of my music over "skunkworx.net." In support of this assertion, however, Respondent points merely to an inoperative web site address and a series of e-mails purportedly written between October 1998 and September 1999, none of which refer to the term "SKUNK WORKS," "SKUNKWORX," or any similar term. Respondent understandably does not characterize his music as "SKUNK WORKS." Respondent also does not deny awareness of Lockheed’s prior use of SKUNK WORKS to identify a part of its business; Respondent merely denies knowledge of Lockheed’s "trademark on SKUNKWORKS."
Respondent’s contention that "SKUNK WORKS" allegedly is "a generic term for an unofficial research project" does not legitimize Respondent’s registration of the disputed domain names. Nothing in his presentation indicates Respondent’s intention to use, or use, of the disputed domain names in their allegedly "generic" sense. The Panel infers, from the Respondent’s failure to offer any explanation of how he chose the disputed domain names, or how those names relate to the activities described in Respondent’s submission, that Respondent had and has no legitimate interest in the disputed domain names.
D. Bad Faith Registration and Use
Following the commencement of this action, the Respondent registered the domain name "mp3skunkworks.com" The record clearly establishes that the Respondent registered this name with knowledge of, and in response to, the Complaint of Lockheed. Respondent has not denied that he registered "mp3skunkworks.com" and with intent to disrupt Lockheed’s business, to hold the name for ransom, to profit from public awareness of the SKUNK WORKS mark and operating division of Lockheed, or all of the foregoing. The Panel is satisfied that Respondent registered "mp3skunkworks.com" in "bad faith" within the meaning of Paragraph 4 of the Policy.
With regard to the domain name "skunkworx.net", Lockheed relies on Paragraph 4(b)(i) of the Policy which provides that a finding of bad faith may be predicated upon:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.
In its unverified Complaint, Lockheed alleges that it wrote to Respondent on July 3, 2000, asking him to transfer the domain name. The letter is not of record. Lockheed further alleges that Respondent answered by telephone on July 10, 2000, and "demanded $5,000 and threatened that if that sum were not paid, he would transfer the domain name to rtmark.com." According to Lockheed, Respondent not only asked for payment beyond the value of any out-of-pocket expenses, but also threatened to transfer the domain name to a company that would use it to harm Lockheed Martin.
In his e-mail response, the Respondent refers to an e-mail from one Jonathan Land, apparently associated with Lockheed’s outside counsel, requesting that Respondent "provide an enumerated list of the expenses you have incurred to date." The Respondent denies having demanded $5,000 from Lockheed. The Respondent further states, rather cryptically, "[t]he mention of a transfer of the domain name to rtmark.com or any 3rd party does not follow from our conversation." Respondent’s denial, like Lockheed’s allegation, is unverified. It is unclear whether the signer of the Complaint participated in the conversation allegedly recounted in the Complaint, or whether the communications described in the Complaint were between Respondent and Mr. Land or some other individual associated with Lockheed.
In view of the contradictory contentions made by Complainant and Respondent and the failure of Complainant to support its position by declaration based on identified personal knowledge, the Panel is unable to conclude that Lockheed has proved, by a preponderance of the evidence, that Respondent registered "skunkworx.net" "primarily for the purpose of selling, renting, or otherwise transferring the domain registration to the Complainant." That may very well have been the Respondent’s intention, but the record before this Panel simply is not sufficient to "prove" that "fact" by a preponderance of the "evidence."
The Panel is, however, satisfied that it is more likely true, than not true, that this Respondent registered and has used "skunkworx.net" in "bad faith" for purposes of the Policy. Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances which, if found by a Panel to be present, constitute "evidence of the registration and use of a domain name in bad faith." The Policy makes clear that a "bad faith" determination can be based on circumstances other than the four examples listed in Paragraph 4(b) of the Policy.
The Policy does not define the term "bad faith." The examples of "circumstances" recognized as "evidence" of "bad faith" in Paragraph 4(b) of the Policy embody an eclectic group of concepts variously reminiscent of unjust enrichment, misappropriation, tortious interference with prospective economic advantage, trademark infringement, and "unfair" business behavior in a general sense. The examples all require that a Respondent have acted with a particular state of mind, such as "primarily for the purpose of disrupting the business of a competitor," or "in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name."
In the present case, the Panel is satisfied that it is more likely true, than not true, that (1) Respondent registered "skunkworx.net" with actual knowledge of Lockheed’s prior use of SKUNK WORKS, "skunkworks.com", and "skunkworks.net"; (2) at the time he registered "skunkworx.net", the Respondent had no bona fide intent to use that name in the generic sense identified by Respondent in his response; (3) by registering "skunkworx.net" Respondent sought, at least in part, to profit from and capitalize on the value of SKUNK WORKS as a designation identifying Lockheed and its SKUNK WORKS aircraft facility; (4) Respondent has sought to block Lockheed from using "skunkworx.net" notwithstanding that Respondent has identified no legitimate interest in the name, is not using it for any purpose, and has no coherent explanation for how the name "skunkworx.net" was or is germane to Respondent’s self-description of his purported e-commerce plans which are undocumented; and (5) the conduct of Respondent is consistent with an intent to engage in malicious mischief calculated to injure, harass, or "hold up" Lockheed while not advancing any bona fide interest of Respondent.
I find in favor of the Complainant. The disputed domain names are confusingly similar to a service mark in which the Complainant has rights; the Respondent lacks rights or legitimate interests in the disputed domain names; and the disputed domain names have been registered and used in bad faith. I therefore decide that the disputed domain names, "skunkworx.net" and "mp3skunkworks.com" should be transferred to the Complainant.
James W. Dabney
Dated: November 1, 2000
In the exercise of its discretion under UDRP Rule 10, the Panel accepts Lockheed's Amended Complaint as the operative statement of its claim in the proceeding.
2: The annexures to the Amended Complaint of Lockheed include (1) a copy of U.S. Reg. No. 1,161,482 for the service mark SKUNK WORKS for "engineering technical consulting, and advisory services with respect to designing, building, equipping, and testing commercial and military aircraft and related equipment"; (2) print-outs of filing details of a series of intent-to-use ("ITU") applications by Lockheed for registration of SKUNK WORKS filed September 17, 1999, and November 22, 1999; and (3) a copy of a consent judgment entered in the case of Lockheed Martin Corp. v. Hsu, Case No. 99-06701, formerly pending in the U.S. District Court for the Central District of California. The Respondent's e-mail response attached what purported to be e-mail messages posted by him between October 1998 and September 1999 concerning "collective creation of audio."