WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lockheed Martin Corporation v. SkunkWerx Motorsports a/k/a Randy Roberson a/k/a William Roberson
1. The Parties
The Complainant is Lockheed Martin Corporation, of Bethesda, Maryland, United States of America, represented by Duane Morris LLP, United States of America.
The Respondent is SkunkWerx Motorsports aka Randy Roberson a/k/a William Roberson, Tampa, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name <skunkwerxmotorsports.com> is registered with Wild West Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 1, 2004, (electronic version) and in hardcopy on September 6, 2004. On September 3, 2004, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name <skunkwerxmotorsports.com> at issue. On September 3, 2004, Wild West Domains, Inc., 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, billing, and technical contact. In response to a September 7, 2004, email notification by the Center that the Complaint was administratively deficient as the proper number of hard copies of the Complaint were not received, the Complainant’s representative responded and on September 17, 2004, the Center acknowledged receiving the two missing hard copies. On September 7, 2004, the Center transmitted by email to the Complainant’s representative a request that the Complaint be amended to identify the subject domain name as <skunkwerxmotorsports.com> and to delete the domain name <skunkwerxmotorsports.us> as <skunkwerxmotorsports.us> was not registered with WIPO (the Center does not handle disputes concerning us.TLD domain names). As instructed, the Complainant filed the amendment to the Complaint which was received by the Center on September 13, 2004. The Center verified that the Complaint, together with the amendment to 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 September 17, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was October 7, 2004. The Respondent did not submit any response. Accordingly, the Center notified the parties of Respondent’s default on October 8, 2004.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on November 5, 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 which marks have been in continuous use by Complainant, and its predecessor in interest, since the mid-1940s.i
In addition to the US 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, in addition to the domain name <skunkwrx.net>, which it obtained by a recent decision and an order of transfer.ii
4.5 The Respondent did not file a Response to this Complaint. The Respondent is located in Tampa, Florida and operated a website at “www.skunkwerxmotorsports.com” at one time although the site is no longer active.
4.6 The Domain Name in issue was registered by the Respondent on March 1, 2003. The website using the domain name in issue is no longer active.
5. Parties’ Contentions
A. Complainant
Identical or Confusingly Similar
Complainant alleges that the domain name <skunkwerxmotorsports.com> incorporates in its entirety the Complainant’s registered mark SKUNK WORKS; the Respondent has simply added “motorsports” to the phonetic equivalent of the trademark.
Rights or Legitimate Interests
Complainant asserts that the Respondent registered the domain name <skunkwerxmotorsports.com> on or about March 1, 2003, decades after the adoption and registration of the SKUNK WORKS mark by Complainant; that Respondent is not known by the domain name at issue; and that the 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.
Registered and Used in Bad Faith
Complainant says that registration serves as constructive notice of a claim of ownership of a mark.
Complainant also argues that the domain name was registered by the Respondent on or after March 1, 2003. By letter dated July 29, 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. Respondent responded on August 24, 2004, with an agreement to cease use and to transfer the domain name. After the Complainant refused the Respondent’s request for reimbursement of expenses for changing the domain name and for changing the corporate name, the Respondent began a series of emails and website postings that made negative remarks about Complainant. Use of the domain name did not cease (at that time) and it was not transferred.
Complainant alleges that the Respondent carried on with its attempt to disrupt and tarnish the business of the Complainant, after receiving correspondence from the undersigned, and that the Complainant’s mark is long registered and of great renown.
Complainant asserts that, by using the domain name in this fashion, the Respondent intentionally attempted to attract for commercial gain Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the products or services on the Respondent’s website.
Accordingly, Complainant says that registrant’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 timely respond to the Complainant’s contentions. However, when notified that the due date for this decision was extended, Respondent sent the following email:
“This is a big bunch of nonsense. I am not contesting it. I abandoned the name, due to Ms. Goldsmith’s incessant whining and took the site down. I already have a new website and so this is meaningless to me. Do you get it? I don’t care-rule whatever you want when you want-The domain name will expire in February of 2005 and I don’t intend to renew it and I will not pay for any exorbitant transfer fees in the meantime. My business is racing and I could care less about a bunch of lawyering and meaningless intrigues. If she wants the domain name she can pick them up herself in under 3 months.”
Given the Respondent’s failure to file a timely response, the Panel will consider this communication as partially reflecting Respondent’s position. The Panel may consider the information in Respondent’s email. Viz Communications, Inc. v. Redsun dba www.animerica.com and David Penava, WIPO Case No. D2000-0905 (“admission of an uninvited reply may be warranted in the interests of fairness”); Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447.
6. Discussion and Findings
Respondent has not simply defaulted; he has expressly declared that he is not contesting these proceedings. This lack of response could be enough to find for Complainant. See Brown Thomas & Company Limited v. Domain Reservations, WIPO Case No. D2001-0592. Policy ¶ 4(a). Even though the Center gave Respondent sufficient notice under Rule 2(a), 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, ¶ 5(e), ¶ 14(a). The complaint is to be decided on the basis of the statements and documents submitted. Rules, ¶ 15(a). Under Rule 14(b), Respondent’s failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate.” Panelist exercises its discretion to draw adverse influence in part because of Respondent’s express declaration in his email that he did not contest these proceedings, which he deemed “a big bunch of nonsense,” and “a meaningless intrigue.”
A. Identical or Confusingly Similar
The Panel finds that the challenged domain name is confusingly similar to Complainant’s registered marks because it incorporates the phonetic equivalent of Complainant’s entire mark. Respondent has simply added “motorsports,” which serves only as a generic description of the Respondent’s business. Lockheed Martin Corp. v. NBPro Hosting, WIPO Case No. D2003-0859.
B. Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interest in respect of the challenged domain name. Certainly, Respondent has not sought to justify his actions. He has declared “this is meaningless to me.” Under these circumstances, this Panelist will rely on Rule 14(b) and deem it appropriate to accept Complainant’s allegations and infer that Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the disputed 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 disputed domain name. Respondent’s request for reimbursement in excess of documented domain name expenses is evidence of bad faith. CBS broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243. Respondent’s vituperative email exchanges and threats to disrupt Claimant’s business is also evidence of bad faith. Reg Vardy, PLC v. David Wilkinson, WIPO Case No. D2001-0593.
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, <skunkwerxmotorsports.com> be transferred to the Complainant.
Lawrence K. Nodine
Sole Panelist
Date: November 23, 2004
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 <eskunkworks.biz>, <eskunkworks.com>, <eskunkworks.info>, <eskunkworks.net>, <eskunkworks.org>, <essbaseskunkworks.com>, <i-skunkworks.biz>, <i-skunkworks.com>, <i-skunkworks.info>, <lmskunkworks.com>, <lmskunkworks.net>, <lmskunkworks.org>, <mp3skunkworks.biz>, <mp3skunkworks.com> (ordered transferred to complainant pursuant to WIPO Case No. D2000-0799), <mp3skunkworks.info>, <skunk-werks.com>, <skunk-werks.net>, <skunk-werks.org>, <skunk-work.com> (ordered transferred to complainant pursuant to WIPO Case No. D2004-0235), <skunk-works.biz>, <skunk-works.info>, <skunk-works.net>, <skunk-works.org>, <skunk-worx.biz>, <skunk-worx.com>, <skunk-worx.info>, <skunk-worx.net>, <skunk-worx.org>, <skunksworks.biz>, <skunksworks.info>, <skunksworks.org>, <skunksworkzph.com>, <skunkwerkes.biz>, <skunkwerkes.com>, <skunkwerkes.info>, <skunkwerks.biz>, <skunkwerks.info>, <skunkwerks.org>, <skunkwerx.biz>, <skunkwerx.info>, <skunkwerx.net>, <skunkwerx.org>, <skunkworks-inc.biz>, <skunkworks-inc.com>, <skunkworks-inc.info>, <skunkworks-inc.net>, <skunkworks-inc.org>, <skunkworks.com>, <skunkworks.info>, <skunkworks.net>, <skunkworks.us>, <skunkworks1.com>, <skunkworksdesign.biz>, <skunkworksdesign.com>, <skunkworksdesign.info>, <skunkworksdesign.net>, <skunkworksdesign.org>, <skunkworksmarketing.biz>, <skunkworksmarketing.com>, <skunkworksmarketing.info>, <skunkworksmarketing.net>, <skunkworksmarketing.org>, <skunkworksnet.biz>, <skunkworksnet.com>, <skunkworksnet.info>, <skunkworkspublishing.com>, <skunkworksrc.com>, (ordered transferred to complainant pursuant to WIPO Case No. D2003-0859), <skunkworkz.biz>, <skunkworkz.info>, <skunkworkz.net>, <skunkworkz.org>, <skunkworx.biz>, <skunkworx.com>, <skunkworx.info>, <skunkworx.net>, (ordered transferred to complainant pursuant to WIPO Case No. D2000-0799), <skunkworxs.biz>, <skunkworxs.com>, <skunkworxs.info>, <skunkworxs.net>, <skunkworxs.org>, <skunkworxz.com>, <the-skunk-works.biz>, <the-skunk-works.com>, <the-skunk-works.info>, <the-skunkworks.biz>, <the-skunkworks.com>, <the-skunkworks.info>, <theskunkworks.biz>, <theskunkworks.info>.