Complainant is Moog Inc. of New York, United States of America (“US”), represented by Hodgson Russ LLP, US.
Respondent is Marjorie Bryan of New York, US. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (“Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on December 20, 2013. On December 20, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 20, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from that in the Complaint, as well as providing other details of the registration. The Center sent an email communication to the Complainant on January 3, 2014 providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 3, 2014.
The Center verified that the Complaint, as amended, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint and the amendment to the Complaint, and the proceedings commenced on January 6, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 27, 2014.
The Center appointed Debra J. Stanek as the sole panelist in this matter on January 31, 2014. 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
Complainant owns US federal trademark registrations for the mark MOOG, as a word mark and in a stylized form, for servomechanism components and other types of electrohydraulic controls. The earliest of these was registered in 1970 and claims a date of first use of 1951. Complainant also owns and uses the domain name for its corporate website.
The disputed domain name was registered on November, 18, 2013. The domain name does not lead to an active website; instead, an error page is displayed. However, it appears that the domain name has been used to generate at least one email message. 5. Parties’ Contentions A. Complainant A. 1. Identical or Confusingly Similar
Complainant has rights in the mark MOOG by virtue of its US federal trademark registrations for the mark.
The disputed domain name is confusing similar to the MOOG mark and Complainant’s corporate name; the only difference is the addition of “-corp”, an abbreviation of the legal description of Complainant’s corporate form. A. 2. Rights or Legitimate Interests
Respondent is not and has never been an authorized distributor of Complainant’s goods or services and has not been licensed to use the MOOG mark, including in a domain name.
Respondent’s name is Marjorie Bryan; she is not commonly known as “Moog” or “Moog-Corp.”
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Instead, the domain name resolves to an error page. A. 3. Registered and Used in Bad Faith
The disputed domain name has been registered to disrupt the business of a competitor and Respondent is using the domain name to attract Internet users to Respondent’s website or another online location and creating a likelihood of confusion.
The MOOG mark, which has been used since 1951, was well-known before the domain name was registered in 2013. Respondent’s registration of a domain name that is confusingly similar to a well-known mark is evidence of bad faith registration and use.
The domain name does not resolve to an active website. Under the circumstances of this case, such passive holding evidences Respondent’s bad faith use of the domain name. Specifically, in allegations supported by a third party and Complainant’s employee1, the Complaint alleges that Respondent used an email address that included the domain name to send a message to a vendor soliciting a price quote for goods. The message purported to be from “Robert Faulkner” of Moog Inc. at Complainant’s address. The message also included hyperlinks to Complainant’s website at “www..” This conduct disrupts Complainant’s business and does harm to Complainant.
Respondent was attempting to purchase products by trading on Complainant’s reputation and credit worthiness. In addition, Respondent’s use of Complainant’s mark in the domain name and email addresses prevents Complainant from controlling its own reputation.
Respondent’s use of a privacy shield service within five days of the initial registration constitutes cyberflight and is also evidence of bad faith registration and use of the domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Procedural Matters
The Rules define a “Respondent” as “the holder of a domain-name registration against which a complaint is initiated.” See Rules, paragraph 1, s.v. “Respondent.” The Panel is of the view that a complaint is “initiated” when it is filed with the Center as described in the Rules, paragraph 3. For example, paragraph 3(a) of the Rules2 provides (emphasis added):
Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any Provider approved by ICANN.
Therefore, in the Panel’s view, the original Complaint correctly named Domains By Proxy, LLC, an identity shield service, as Respondent. It was only after this proceeding was filed and commenced that the registrar identified “Marjorie Bryan” as the registrant. Complainant thereafter amended its Complaint to substitute her as Respondent.
Notwithstanding the Panel’s conclusion that the Complaint as originally brought was proper, for purposes of this Decision, the Panel treats only “Marjorie Bryan” as Respondent. B. Substantive Matters
In order to prevail, a complainant has the burden of showing, as to a disputed domain name, that:
(i) it is identical or confusingly similar to a mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect to it; and
(iii) it has been registered and is being used in bad faith.
The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see paragraph 4(c) of the Policy, as well as other circumstances that may evidence a respondent’s bad faith registration and use, see paragraph 4(b) of the Policy.
Although Respondent has not answered the Complaint, a default does not automatically result in a finding for Complainant. Rather, Complainant continues to have the burden of establishing the required elements. The Panel may, however, draw such inferences from Respondent’s default as it considers appropriate. See Rules, paragraph 14(b). B 1. Identical or Confusingly Similar
Complainant has established its rights in the MOOG mark by virtue of the evidence of its US federal trademark registrations.
Respondent’s domain name is not identical to Complainant’s mark. The Panel is of the view that, as a general matter, a domain name is likely to be confusingly similar to a mark if it incorporates the mark or a variation of the mark. Here, the domain name consists of the MOOG mark followed by “-corp,” which the Panel concludes would be understood as a reference to “corporation”. Those differences do not effectively differentiate or distinguish the domain name from Complainant’s mark, which remains the dominant portion of the domain name (the presence or absence of spaces and the addition of the generic top-level domain “.com” are not relevant for purposes of this comparison).
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights. B 2. Rights or Legitimate Interests
The Panel, consistent with the consensus view, finds that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing that a respondent lacks rights or legitimate interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1(after a complainant makes a prima facie case, the burden of production to show rights or legitimate interests in the domain name shifts to the respondent).
Paragraph 4(c) of the Policy sets out the following examples:
(i) before 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
(ii) you (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
(iii) you 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.
The Panel concludes that Complainant has made a prima facie showing that none of the three examples set forth in paragraph 4(c) of the Policy are applicable here.
There is no reason to believe, from the WhoIs record or otherwise, that Respondent is or could be known by the domain name. Nor does it appear that Respondent is making a legitimate noncommercial or fair use of the domain name. The domain name does not resolve to an active website; as discussed below, evidence of Respondent’s use of the domain name suggests, instead, that Respondent is using the domain name to deceive others into believing that Respondent’s communications are from Complainant.
The Panel concludes that Complainant has established that Respondent lacks any rights or legitimate interests in the disputed domain name. B 3. Registered and Used in Bad Faith
A complainant must establish that the domain name was registered and is being used in bad faith. The Policy sets out four non-exclusive circumstances, evidence of which may establish bad faith (see Policy, paragraph 4(b)(i)-(iv)):
(1) Registering the domain name primarily to sell it for more than documented out-of-pocket costs (see Policy, paragraph 4(b)(i)).
(2) Registering the domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct (see Policy, paragraph 4(b)(ii)).
(3) Registering the domain name primarily to disrupt the business of a competitor (see Policy, paragraph 4(b)(iii)).
(4) Using the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or a product or service on [the respondent’s] web site or location, (see Policy, paragraph 4(b)(iv)).
Complainant’s rights in its MOOG mark long predate the registration of the disputed domain name. The email communication submitted by Complainant shows that Respondent had actual knowledge of Complainant, and Complainant’s name and mark, and intended for the recipient to believe that the communication was from Complainant when it was not. Despite the fact that this conduct does not neatly fit into the examples in paragraph 4(b) of the Policy3, those examples are not exclusive.
The Panel readily concludes that under the circumstances presented here, Complainant has established that Respondent has registered and is using the disputed domain name in bad faith. 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 be transferred to Complainant.
Debra J. Stanek
Sole Panelist
Date: February 18, 2013
1 Complainant provided the declaration of the president of the company that received the message and the declaration of an employee who reviewed corporate records and stated that Complainant did not have an employee named Robert Faulkner during the preceding five-year period.
2 In contrast, paragraph 4(c) of the Rules, entitled “Notification” of Complaint refers instead to the “commencement” of the proceedings.
3 There is no evidence that Respondent intends to sell the domain name, engaged in a pattern of registering domain names to prevent Complainant’s registrations, is a competitor of Complainant, or is attracting visitors to her web site or other online location.
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