WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Moog Inc. v. You Tao, Su Zhou Fisher Pirter Automation Equipment Co., Ltd

Case No. D2017-2147

1. The Parties

The Complainant is Moog Inc. of East Aurora, New York, United States of America (“United States”), represented by CSC Digital Brand Services AB, Sweden.

The Respondent is You Tao, Su Zhou Fisher Pirter Automation Equipment Co., Ltd of Suzhou, Jiangsu, China.

2. The Domain Name and Registrar

The disputed domain name <moog-china.net> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2017. On November 3, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 6, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

On November 13, 2017, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On November 13, 2017, the Complainant submitted the amended Complaint in which it requested for English to be the language of the proceeding. The Respondent did not comment on the language of the proceeding.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 11, 2017.

The Center appointed Sok Ling MOI as the sole panelist in this matter on December 21, 2017. 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

The Complainant, founded in 1951, is a designer, manufacturer and integrator of precision control components and systems. Its systems control military and commercial aircraft, satellites and space vehicles, launch vehicles, missiles, automated industrial machinery, wind turbines, marine and medical equipment.

Being one of the world’s leading control solutions providers, the Complainant is present in 27 countries worldwide and employs nearly 11,000 people. Publicly traded on the New York stock Exchange, the Complainant reported sales of USD 2.41 billion for the year 2016. The Complainant has a strong Internet presence through its website at “www.moog.com”.

The Complainant owns trade mark registrations for MOOG in various jurisdictions, including the following:

Jurisdiction

Mark

Registration No.

Class No.

Registration Date

United States

MOOG

893181

9

June 23, 1970

United States

MOOG

1055970

9

January 11, 1977

United States

MOOG

1088046

9

March 28, 1978

China

MOOG

1141100

7

January 7, 1998

International

MOOG

402981

6, 7, 8, 9, 10, 12, 16, 35, 37, 39, 40

November 20, 1973

International

MOOG

610136

6, 7, 8, 9, 10, 16, 35, 37, 39, 40

November 15, 1993

The disputed domain name was registered on January 23, 2017. According to the evidence submitted by the Complainant, the disputed domain name resolved to a website which appeared to be a replica of the Complainant’s website offering the Complainant’s products for sale.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to its trade mark MOOG, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. The Complainant requests for the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1 Language of the Proceeding

Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

Paragraphs 10(b) and (c) of the Rules require the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated equitably and given a fair opportunity to present their respective cases.

The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.

The Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:

(a) the disputed domain name is registered in Latin characters, rather than Chinese script; and

(b) according to the evidence submitted by the Complainant, the website to which the disputed domain name resolves contains contents in English.

Additionally, the Panel notes that:

(a) the Center has notified the Respondent of the proceeding in both Chinese and English;

(b) the Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has failed to do so; and

(c) the Center has informed the Respondent that it would accept a Response in either English or Chinese.

Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case.

The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be re-filed in Chinese would, in the circumstances of this case, cause an unnecessary cost burden to the Complainant and would unnecessarily delay the proceeding.

Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that it shall accept the Complaint and all supporting materials as filed in English, that English shall be the language of the proceeding, and that the decision will be rendered in English.

6.2 Substantive Issues

Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:

(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel accepts that the Complainant has rights in MOOG by virtue of its use and registration of the same as a trade mark.

The disputed domain name incorporates the Complainant’s trade mark MOOG in its entirety. The addition of the dash “-” and the geographical term / country name “china” does not reduce the confusing similarity between the disputed domain name and the Complainant’s trade mark. The addition of the generic Top-Level Domain (“gTLD”) “.net” does not impact the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade mark.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark.

Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of proof to establish that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to come forward with evidence in support of its rights or legitimate interests in the disputed domain name. The respondent may establish its rights in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. Honghao Internet Foshan Co, Ltd, WIPO Case No. D2013-0974)

The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the MOOG trade mark or to seek registration of any domain name incorporating the trade mark. There is also no evidence suggesting that the Respondent has acquired any trade mark rights in the term “moog”.

According to the evidence submitted by the Complainant, the Respondent was using the disputed domain name to publish a website that appeared to be a replica of the Complainant’s website offering the Complainant’s products for sale. This suggests that the Respondent is using the disputed domain name to mislead Internet visitors by creating a likelihood of confusion with the Complainant’s official website.

The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to come forward with evidence of its rights or legitimate interests in the disputed domain name. Since the Respondent has failed to respond, the Panel determines that the prima facie case has not been rebutted.

Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.

Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the

registration and use of the disputed domain name in bad faith, namely:

(i) circumstances indicating that the respondent has registered or acquired the disputed 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 trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, 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 location or of a product or service on the respondent’s website or location.

The MOOG trade mark has been in use since the 1950s, and enjoys a strong reputation worldwide and a significant online presence. There is no doubt that the Respondent was aware of the Complainant’s trade mark when it registered the disputed domain name as it was in fact used to publish a website that appeared to be a replica of the Complainant’s website offering the Complainant’s products for sale. Registration of a domain name that incorporates a complainant’s well-known trade mark suggests opportunistic bad faith.

By adding the geographical term / country name “china” to the Complainant’s MOOG trade mark in a domain name, the Respondent is seeking to create an impression that its website is the Complainant’s official website for the China market. This has the potential to divert Internet users looking for the Complainant’s products to the Respondent’s website. The Respondent’s use of the Complainant’s trade mark MOOG on its website further creates an impression of the existence of an affiliation with the Complainant where there is none. The Panel determines that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel is satisfied that the Respondent is using the disputed domain name for mala fide purposes and the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.

Such use of the disputed domain name not only misleads the public but also causes disruption to the Complainant’s business. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iii) of the Policy are also applicable to the present case.

The Respondent has not denied the Complainant’s allegations of bad faith. In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith.

Accordingly, the Complainants have satisfied the requirements of the third element under paragraph 4(a) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <moog-china.net> be transferred to the Complainant.

Sok Ling MOI
Sole Panelist
Date: January 12, 2018