The Freename Forum

In a recent decision by The Forum in the dispute over the domain fucklockheedmartin.com, the deciding panel was faced with the question of when a domain name falls under the protection of non-commercial freedom of expression.

Lockheed Martin Corporation saw its trademark rights infringed by the domain fucklockheedmartin.com and initiated UDRP proceedings before The Forum. The company argued that the domain directs to a site where the domain owner and opponent expresses political views but these are part of a wider business model offering commercial services where members sell and trade products with each other. The trademark “Lockheed Martin” appears only twice, once as a domain name and then in a list of a large number of companies. There are no genuine statements about Lockheed Martin Corporation. The opponent, Leah Powell / Trade to Travel Incorporated, based in the British Virgin Islands, did not appear in the proceedings. The Australian lawyer Nicholas J.T. Smith was appointed as the decision-maker.

Smith upheld Lockheed Martin's complaint because the opponent was not using the domain in the sense of non-commercial free speech (NAF Claim Number: FA2502002140073). The domain includes the complainant's trademark with the suffix “fuck” and the ending .com, which makes the domain confusingly similar to Lockheed Martin's trademark and fulfills the requirement of the first element of the UDRP. Smith examined the question of the opponent's right and legitimate interest in detail, first finding that the complainant had provided prima facie evidence that the opponent had no right to the domain fucklockheedmartin.com. In this case, the question of Rule 2.6 of WIPO Overview 3.0 arose, which states that the use of a domain name for fair use, e.g. for non-commercial free speech, would in principle support the assertion of a legitimate interest of the opponent under the UDRP. However, as numerous UDRP proceedings have shown, the argument of using the domain for freedom of expression often turns out to be a pretext for cybersquatting, commercial activities or defamation. A legitimate interest in the use of a trademark in the domain name is established if the website is immediately non-commercial, genuinely fair and not misleading or dishonest. Commercial purposes are also accepted as long as they are limited to fundraising to offset registration or hosting costs associated with the domain and website. However, Smith found in this case that the opponent was not using the domain for genuine non-commercial criticism of the complainant. As argued by the Complainant, the domain does not contain any material criticizing the Complainant. As argued, there are only two mentions of the Complainant: as a domain name and in a list of a large number of companies that “will not silence the opponent”. Smith acknowledged the complainant's submission that the opponent uses the domain to direct internet users to his website, which contains a mixture of his political opinions on matters unrelated to the complainant, and where he operates a commercial online marketplace. This confirmed the complainant's prima facie case, which the opponent did not counter. Smith thus considered the second element of the UDRP to be fulfilled.

Smith also considered the question of bad faith to be fulfilled, as the opponent, who had registered the domain in March 2024, should at least have been aware of the complainant's trademark, especially since he also included the complainant in the list of companies that will not silence him. He clearly wanted to attract the attention of Internet users to himself and his commercial website, which does not criticize the complainant in a non-commercial way. Smith therefore considered all the requirements of the UDRP to be fulfilled. He upheld Lockheed Martin's complaint and decided to transfer the domain to Lockheed Martin.

The UDRP decision on the domain fucklockheedmartin.com can be found at:
https://www.adrforum.com/DomainDecisions/2140073.htm

The WIPO Overview 3.0 can be found at:
https://www.wipo.int/amc/en/domains/search/overview3.0/