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WIPO Domain Name Decision: D2000-1733
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Дела по доменам общего пользования
Дела по национальным доменам
WIPO Arbitration and Mediation Center
Martin Corporation v. Ning Ye
1. The Parties
The Complainant is
Lockheed Martin Corporation, a corporation organized in the State of Maryland,
United States of America (USA), with place of business in Bethesda, Maryland,
The Respondent is Ning
Ye, with an address in Washington, D.C., USA.
2. The Domain Name and
The disputed domain
name is <lockheedmartin.org>.
The registrar of the
disputed domain name is Network Solutions, Inc., with business address in
Herndon, Virginia, USA.
3. Procedural History
The essential procedural
history of the administrative proceeding is as follows:
(a) Complainant initiated
the proceeding by the filing of a complaint via e-mail received by the WIPO
Arbitration and Mediation Center ("the Center") on December 13, 2000,
and by courier mail received by the Center on December 14, 2000. Complainant
paid the requisite filing fees. On December
19, 2000), the Center transmitted a Request for Registrar Verification
to the registrar, Network Solutions, Inc. (with the Registrar’s Response received
by the Center on December 20, 2000).
(b) On December
28, 2000, the Center transmitted notification of the complaint and
commencement of the proceeding to Respondent via e-mail, telefax and
(c) On January
16, 2001, Respondent’s response was received via e-mail by the Center,
and on January 22, 2001, Respondent’s response was received via courier
mail by the Center. Respondent also transmitted his response to Complainant.
(d) By letter
of April 10, 2001, Complainant transmitted to the Center and Respondent
a supplemental notice attaching a declaration by its counsel concerning
conduct by Respondent occurring subsequent to the filing of its complaint,
accompanied by a request to the Panel to consider such supplemental
(e) On April
30, 2001, the Center notified Complainant and Respondent of the appointment
of Frederick Abbott, Donald Jamieson and Mark Partridge as the Administrative
Panel in this matter. Each of the aforesaid panelists had provided
to the Center an executed Statement of Acceptance and Declaration
of Impartiality and Independence. The Center notified the Panel that,
absent exceptional circumstances, it would be required to forward
its decision to the Center by May 14, 2001. On April 30, 2001,
the Panel received an electronic file in this matter by e-mail from
the Center. The Panel subsequently received a hard copy of the file
in this matter by courier mail from the Center.
(f) By e-mail
of May 13, 2001 (with hard copy by mail), Respondent transmitted to
the Center, the Panel and Complainant a response to the supplemental
notice and declaration submitted by Complainant.
The Panel has not received
any requests from Complainant or Respondent regarding further submissions,
waivers or extensions of deadlines, and the Panel has not found it necessary
to request any further information from the parties. The proceedings have
been conducted in English.
4. Factual Background
Complainant has registered
the word service mark "LOCKHEED MARTIN" on the Principal Register
of the United States Patent and Trademark Office (USPTO), reg. no. 2,022,037,
dated December 10, 1996. Such registration is in International Class (IC)
42, covering "new product research and development, design and testing
for new product development, all relating to aerospace, aeronautics systems
and vehicles, electronic systems, information systems, energy systems, materials
technology, and environmental enhancement." The aforesaid USPTO service
mark registration claims a date of first use in commerce of March 1995.
Complainant has registered a combination design and word service mark for
"LOCKHEED MARTIN" on the Principal Register of the USPTO, reg.
no. 2,022,038, dated December 10, 1996, covering the same services as the
word-only service mark, and claiming the same date of first use in commerce.
The aforesaid service marks are valid and subsisting. Complaint, para. 12
& Annex 3.
Complainant has also
registered a combination design and word trademark for "LOCKHEED MARTIN"
on the Principal Register of the USPTO, reg. no. 2,289,109 dated October
26, 1999 (in IC 25, covering "T-Shirts and Caps"), reg. no. 2,289,019,
dated October 26, 1999 (in IC’s 8, 14, 16, 18, 20 and 25), covering various
merchandise), and reg. no. 2,289,018, dated October 26, 1999 (in IC’s 18,
21, 24 and 28, covering various merchandise). Id.
The term "LOCKHEED"
was invented by Complainant (or its predecessor) (id., para.12).
The mark "LOCKHEED
MARTIN" was created following the merger of Lockheed Corporation and
Martin Marietta in 1995. Lockheed Corporation was incorporated in 1932 (id.).
Complainant has registered
the domain name <lockheedmartin.com> and maintains an active commercial
website at the Internet address <www.lockheedmartin.com> (Panel visit
of May 11, 2001).
Complainant uses the
"LOCKHEED MARTIN" mark in connection with sales in the United
States and other countries of goods, including military equipment, and services
(Panel visit to <www.lockheedmartin.com>, May 11, 2001).
According to the Network
Solutions’ verification response, Respondent is the listed registrant of the
disputed domain name <lockheedmartin.org>. A Network Solutions WHOIS database
printout of December 12, 2000, indicates that the record for the disputed domain
name was created on January 16, 2000, and was last updated on January
16, 2000. Complaint, Annex 1.
Respondent has used
the disputed domain name in connection with a website containing content
and links of various kinds. This content included advertisement for back
issues of two newspapers on CD-ROM with request for a donation. The content
also included a "Heroes List". Links were included to traditional
Chinese newspapers and electronic magazines, to direct or indirect "discussion,
literature and discovery" (including topics relating to sex), and to
commercial tourism service providers. Respondent’s website contained several
commercial advertisements, including for a car rental company, and for companies
offering domain name registration services. Complaint, para. 12 and Annex
7, Declaration of Juann Wen, signed and dated December 6, 2000, at Los Angeles,
Respondent is a U.S.
citizen, born in the People’s Republic of China. He is a leader of a non-governmental
organization, the Free China Movement, that actively opposes the present
government of China. The Free China Movement maintains a website at Internet
address <www.freechina.net>. Deposition of Ye Ning, dated November
9, 2000, taken in connection with Lockheed Martin Corporation v. Network
Solutions, Inc., Case No. 4:00-CV-0405-A, filed April 20, 2000, Federal
District Court, N.D. Texas, Complaint, Annex 4.
that the <www.lockheedmartin.org> website is occasionally used by
the Free China Movement to "send uncensored, non-commercial information
(with no charge) to millions of slaves behind communist iron curtain, in
order to speed up the total collapse of the world’s most dangerous evil
empire" (Response, para. V).
According to Complainant,
following initiation of this proceeding, Respondent contacted Complainant’s
counsel by telephone and requested a "token payment" for transfer
of the disputed domain name. In response to Complainant’s query as to the
amount Respondent would consider appropriate as a token payment, Respondent
indicated $9,900. Complainant rejected this offer, and counter-offered to
pay Respondent his out-of-pocket expenses in connection with registration.
Respondent rejected Complainant’s counter-offer. Declaration of Jonathan
A. Land, counsel for Complainant, April 10, 2001, filed in connection with
According to Respondent,
while he initiated the telephone conversation with Complainant’s counsel
referred to in the preceding paragraph, he did so for the purposes of settling
this dispute. Upon Complainant’s request regarding a specific grounds for
settlement and transfer of the disputed domain name, Respondent suggested
that not more than $10,000 be contributed confidentially by Complainant
to a non-profit charity designated by Respondent. Respondent also referred
to an alleged collective resignation of a first arbitration panel appointed
in this proceeding, "probably concerning sensitive political and moral
aspects involved in the deep nature of this case." E-mail from Ning
Ye to the Center, Panel and Complainant of May 13, 2001.
Upon query from this
Panel, the Center advised that no prior administrative panel had been appointed
in this matter, nor had any such panel collectively resigned. E-mail from
Presiding Panelist to the Center of May 13, 2001, and e-mail from the Center
to Presiding Panelist of May 14, 2001.
The Service Agreement
in effect between Respondent and Network Solutions subjects Respondent to
Network Solutions’ dispute settlement policy, the Uniform Domain Name Dispute
Resolution Policy, as adopted by ICANN on August 26, 1999, and with implementing
documents approved by ICANN on October 24, 1999. The Uniform Domain Name
Dispute Resolution Policy (the "Policy") requires that domain
name registrants submit to a mandatory administrative proceeding conducted
by an approved dispute resolution service provider, of which the Center
is one, regarding allegations of abusive domain name registration (Policy,
5. Parties’ Contentions
that it is the holder of valid and subsisting trademark and service mark
registrations for "LOCKHEED MARTIN" (see Factual Background,
supra). Complainant indicates that the disputed domain name, <lockheedmartin.org>,
is identical or confusingly similar to its "LOCKHEED MARTIN" mark.
that Respondent is not commonly known by the "LOCKHEED MARTIN"
name, and has not been authorized to use that mark for any purpose.
Respondent has asserted
in deposition testimony in another action that he registered the name <lockheedmartin.org>
without knowledge of Complainant’s mark. Respondent indicated that the name
"martin" was based on the last name of an office acquaintance,
and that the term "lockheed" was chosen after Respondent was unable
to register any domain name using the term "lucky" or a variation
thereof. Respondent first asserted that the name "Lockheed" was
taken from a book of American baby names. Complainant asserts and has submitted
numerous domain name-availability search page printouts indicating that
the domain name <luckymartin.com> and variations thereof are not presently
that Respondent’s <www.lockheedmartin.org> website is used for commercial
that Respondent’s use of its mark in connection with disseminating "anti-Chinese
messages and sexually explicit content constitutes tarnishment of Complainant’s
that Respondent’s use of its mark to bypass Chinese government "firewalls"
with anti-government messages could damage commercial relations between
Complainant and China. Complainant suggests that such activity constitutes
tarnishment of its mark, and that such tarnishment may be grounds for a
finding of bad faith under the Policy.
that the Panel direct the registrar to transfer the disputed domain name
that this dispute concerns subject matter that is beyond the jurisdiction
of the Panel. Respondent claims that his use of the disputed domain name
to maintain a website critical of the government of the People’s Republic
of China raises a political question that is outside the scope of the Panel’s
authority. Respondent indicates that this proceeding involves due process,
equal protection and takings issues for which this proceeding is not the
Respondent argues that
this proceeding is taking place in an inconvenient forum, which should instead
be either Maryland or Washington, D.C.
that the disputed domain name is not confusingly similar to Complainant’s
mark because of the use of the generic top-level domain name (gTLD) ".org".
Respondent asserts that the gTLD ".org" is used almost exclusively
by not-for-profit organizations. Since Complainant is not involved in not-for-profit
activities, Respondent’s use of the disputed domain name could not confuse
Respondent states that
Complainant has misrepresented his deposition testimony regarding the creation
of the disputed domain name, and that his reference to "lucky"
having been previously registered as a domain name was not to be understood
in connection with "martin", but rather in respect to "lucky"
and its variations standing alone. Statements or implications that are inconsistent
with this may have resulted from innocent misstatement.
that although the disputed domain name may have been chosen to bypass a
Chinese government firewall, it was not chosen with the purpose of tarnishing
Complainant’s mark. Respondent viewed the disputed domain name as a generic
or neutral name that might thereby bypass a firewall.
that Complainant’s citation of myriad instances of press reports using its
mark and name does not prove that Respondent was aware of that mark since
statistical probability cannot be used to prove intention or bad faith.
that the Free China Movement and VIP Reference (another anti-Chinese government
website) serve the noble cause of freedom, and that even if the <www.lockheed.org>
website contains remotely commercial material, and links to commercial sites,
"that does not change the nature and quality of the website as a not-for-profit,
public service information center."
Respondent claims that
sexually explicit links on its <www.lockheed.org> website "reflects
a good appetite of a sexually thirsty person getting used to living in the
paradise of communist Puritanism, even though it could be dry and boring
if it is labelled as ‘literature’." Respondent views Complainant’s
attacks on this sex-related content as consistent with the Chinese government’s
program to suppress the free flow of information.
that a finding by the Panel against him would constitute a violation of
international human rights standards because it would derail his humanitarian
6. Discussion and Findings
The Uniform Domain
Name Dispute Resolution Policy (the "Policy") adopted by the Internet
Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999
(with implementing documents approved on October 24, 1999), is
addressed to resolving disputes concerning allegations of abusive domain
name registration. The Panel will confine itself to making determinations
necessary to resolve this administrative proceeding.
It is essential to
dispute resolution proceedings that fundamental due process requirements
be met. Such requirements include that a respondent has notice of proceedings
that may substantially affect its rights. The Policy, and the Rules for
Uniform Domain Name Dispute Resolution Policy (the "Rules"), establish
procedures intended to assure that respondents are given adequate notice
of proceedings commenced against them, and a reasonable opportunity to respond
(see, e.g., paragraph 2(a), Rules).
In this proceeding,
Respondent has furnished a detailed response to the complaint in a timely
manner. There is no issue as to whether Respondent received adequate notice
of these proceedings.
that the subject matter of this dispute is outside the jurisdiction of the
Panel because it involves a "political question". Respondent appears
to argue that because he is involved in disseminating information critical
of the Chinese government, a determination that he has abusively registered
and used the disputed domain name would suppress his political activities
by depriving him of a public forum. By depriving Respondent of a forum to
express his views, the Panel would limit his political activities, and thereby
impermissibly intervene in the political arena.
The Panel does not
accept Respondent’s view regarding its jurisdiction to decide this dispute.
The issue at stake in this proceeding is not whether Respondent is entitled
to engage in political activities or disseminate political speech. Respondent
clearly is entitled to undertake such activities. The issue is whether Respondent
is entitled to use Complainant’s trademark and service mark as the principal
identifier of the location or address of his activities, whether political
or commercial. The fact that Respondent is entitled to express his political
views does not translate into a right to use the trademark or service mark
of another person without legal constraint.
In the U.S. legal system,
the "political question" doctrine is used in connection with disputes
that involve the distribution of competences among branches of government.(Footnote
1) A federal court may dismiss a cause of action because it considers the
subject matter should appropriately be addressed by the executive or legislative
branch of government, and not by the judicial branch. From a juridical standpoint,
private causes of action are not deemed to involve non-justiciable "political
questions" because a determination will have effects in the political sphere.
The Panel notes that
many cases decided under the Policy have involved a tension between the
interests of an individual in speech or expression and the interests of
a trademark holder in the protection of commercial interests. In making
determinations under the Policy, panels are expressly called upon to evaluate
claims of legitimate interests of domain name registrants in the non-commercial
or fair use of names (Policy, para. 4(c)(iii)).
The Panel finds that
the subject matter of this dispute is within the scope of its jurisdiction
under the Policy.
Respondent has also
argued that this determination is taking place in an inconvenient forum.
The Panel notes that Respondent accepted this forum in registering the disputed
domain name. Moreover, since this proceeding, as all proceedings under the
Policy, is conducted without an in-person hearing (save in exceptional circumstances),
the Panel can detect no undue inconvenience suffered by the Respondent as
a consequence of the use of this forum. The Panel rejects Respondent’s objection
to the forum for this proceeding.
Paragraph 4(a) of the
Policy sets forth three elements that must be established by a Complainant
to merit a finding that a Respondent has engaged in abusive domain name
registration, and to obtain relief. These elements are that:
domain name is identical or confusingly similar to a trademark or
service mark in which the complainant has rights; and
has no rights or legitimate interests in respect of the domain name;
domain name has been registered and is being used in bad faith.
Each of the aforesaid
three elements must be proved by a complainant to warrant relief.
Complainant has demonstrated
rights in the trademark and service mark "LOCKHEED MARTIN" through
registration at the U.S. PTO, establishing a presumption of rights in the
mark, and by use in commerce. Complainant’s registration of its mark substantially
preceded Respondent’s registration of the disputed domain name.
Respondent has conceded
that the disputed domain name <lockheedmartin.org> is identical to
Complainant’s mark, with the exception of Respondent’s addition of the gTLD
".org". Respondent argues that the gTLD ".org" is used
almost exclusively by not-for-profit businesses, and as such Internet users
would not confuse a domain name using the ".org" gTLD with Complainant
and its products and services.
The gTLD’s ".com",
".net" and ".org" identify open domains that are not
restricted by the nature of the activity undertaken on a website identified
by those names. The ".org" gTLD identifier is as susceptible to
use by a commercial enterprise as is ".com", and commercial enterprises
often register domain names in all three open domains.
An Internet user viewing
the domain name <lockheedmartin.org>, or the URL <www.lockheedmartin.org>,
is likely to assume that Complainant is the sponsor of or affiliated with
a website identified by that name.
is an invented term. "LOCKHEED MARTIN" is an arbitrary mark. It
is highly distinctive. This heightens the likelihood of Internet user confusion
involving Complainant’s mark and the disputed domain name. Internet users
are more likely to draw a connection between a highly distinctive name and
an enterprise than they are to draw a connection between a descriptive name
and an enterprise.
The Panel finds that
the disputed domain name is identical to Complainant’s trademark and service
mark. Complainant has thus established the first of the three elements necessary
to a finding that Respondent has engaged in abusive domain name registration.
The second element
of a claim of abusive domain name registration is that the respondent has
no rights or legitimate interests in respect of the domain name (Policy,
paragraph 4(a)(ii)). The Policy enumerates several ways in which a
respondent may demonstrate rights or legitimate interests:
"Any of the
following circumstances, in particular but without limitation, if found
by the Panel to be proved based on its evaluation of all evidence presented,
shall demonstrate your rights or legitimate interests to the domain name
for purposes of Paragraph 4(a)(ii)
any notice to you of the dispute, your 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; or
(as an individual, business, or other organization) have been commonly
known by the domain name, even if you have acquired no trademark
or service mark rights; or
are making a legitimate noncommercial or fair use of the domain
name, without intent for commercial gain to misleadingly divert
consumers or to tarnish the trademark or service mark at issue."
(Policy, paragraph 4(c))."
Respondent claims that
he has not used the disputed domain name to offer goods or services. Respondent
has not suggested that he was commonly known by the disputed domain name.
that he is making legitimate noncommercial use of the disputed domain name.
This claim appears to have three prongs. The first claim is that by using
a "neutral" or "generic" name Respondent may be aided
in penetrating a Chinese government "firewall" intended to suppress
denies that he knew of Complainant’s mark. He is not, therefore, claiming
that he used Complainant’s mark in his domain name because he thought the
Chinese authorities might not take notice of or suppress a website identified
by that name because it is associated with a well-known U.S.-based commercial
As the Panel has already
noted, the term "LOCKHEED MARTIN" is highly distinctive. It is
not "generic" or "neutral" in the sense of employing
words commonly used to identify a thing. The Panel does not accept Respondent’s
assertion that "LOCKHEED MARTIN" was chosen because it is "generic"
or "neutral", and might thereby aid in bypassing a government
The second prong of
Respondent’s claim is that his use of the disputed domain name is legitimate
noncommercial use because he is not undertaking commercial activities on
The Panel does not
accept this assertion. There are commercial activities taking place on and
in connection with Respondent’s website. There are advertisements for several
commercial enterprises directly on the website, and there are a number of
links to commercial businesses, including businesses providing tourism services.
There is no reason offered as to why Complainant’s mark should be used by
Respondent in connection with these commercial activities.
The third prong of
Respondent’s claim is that his use of Complainant’s mark is effectively
immunized from scrutiny because he is criticizing the government of the
People’s Republic of China.
The Policy allows for
the legitimate noncommercial use of a mark as an exception to the exclusive
rights of a trademark holder. However, the use of another person’s mark
in a domain name is not protected from scrutiny simply because the user
of the mark is criticizing a government, however noble or well intentioned
that criticism may be.
There is no suggested
correlation between Respondent’s use of Complainant’s mark and criticism
of the PRC government. It is an asserted random use of Complainant’s mark
combined with commercial activity. The Panel does not consider this activity
immune from scrutiny merely because Respondent asserts that his objectives
are politically laudable.
The Panel finds that
Respondent does not have rights or legitimate interests in the disputed
domain name. Thus, Complainant has established the second element necessary
to prevail on its claim that Respondent has engaged in abusive domain name
The Policy indicates
that certain circumstances may, "in particular but without limitation,"
be evidence of bad faith (Policy, para. 4(b)). Among these circumstances
are: (1) that the domain name has been registered or acquired by a respondent
"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 [respondent’s] documented out-of-pocket costs
directly related to the domain name" (id., para. 4(b)(i)), and
(2) that a respondent "by using the domain name, … [has] intentionally
attempted to attract, for commercial gain, Internet users to [its] 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 [respondent’s] web site or location of a product or service on [its]
web site or location" (id., para. 4(b)(iv)).
The Panel has determined
that the disputed domain name is identical to Complainant’s mark, and that
Respondent is using the name in connection with a website that promotes
commercial activity. Given the highly distinctive character of Complainant’s
mark, the Panel considers that Respondent intentionally adopted the mark
in his domain name to attract Internet users to his website for purposes
of commercial gain by creating a likelihood of confusion as to Complainant’s
sponsorship of or affiliation with his website. Respondent’s motives may
indeed have been mixed. That is, Respondent may also have intended to broaden
his political message by using Complainant’s mark. Nonetheless, he has evidenced
the conduct that constitutes bad faith under the terms of the Policy.
Complainant and Respondent
have submitted documents to the Panel indicating that after the commencement
of this proceeding, Respondent contacted Complainant’s counsel by telephone
concerning terms upon which it might be resolved. The Panel has reviewed
these documents. Complainant and Respondent differ as to the substance of
the conversation between them. In light of the Panel’s finding that Respondent
has used Complainant’s mark to attract Internet users to his website for
commercial gain, the Panel need not make any finding or determination regarding
this additional set of circumstances.
Complainant has established
the third and final element necessary for a finding that the Respondent
has engaged in abusive domain name registration and use.
The Panel will therefore
request the registrar to transfer the domain name <lockheedmartin.org>
to the Complainant.
Based on its finding that
the Respondent, Ning Ye, has engaged in abusive registration and use of the
domain name <lockheedmartin.org> within the meaning of paragraph 4(a)
of the Policy, the Panel orders that the domain name <lockheedmartin.org>
be transferred to the Complainant, Lockheed Martin Corporation.
1. See, e.g., Baker v. Carr, 369 U.S. 186 (1962). As the U.S.
Supreme Court has stated: "Of course the mere fact that the suit seeks
protection of a political right does not mean it presents a political question."
(369 U.S., at 209) (back to text)