The Complainant is Moog Inc. of East Aurora, New York, United States of America (“US”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Luo Jie Ming of Wuzhou, Guangxi, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with eName Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 16, 2018. On May 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 17, 2018, 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 May 22, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Respondent sent 13 emails in Chinese on May 23, 2018, May 24, 2018 and May 25, 2018, requesting that Chinese be the language of the proceeding. The Complainant requested that English be the language of the proceeding and filed the amended Complaint on May 25, 2018.
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 in English and Chinese of the Complaint, and the proceedings commenced on May 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 19, 2018. The Respondent submitted two emails on May 30, 2018 and May 31, 2018. The Response was filed in Chinese with the Center on June 4, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on June 13, 2018. 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 public company that designs and manufactures precision motion control components and systems for various industries such as aviation, aerospace, marine, renewable energy and medical equipment. Its headquarters is located in East Aurora, New York. The Complainant has its presence in 27 countries, including China, with nearly 11,000 employees.
The Complainant is also the owner of various MOOG trademarks in different jurisdictions, including Chinese trademark registration no. 1141100 in Class 7, registered on January 7, 1998; US trademark registration nos. 0893181 in Class 9, 1055970 in Class 9 and 1088046 in Class 9, registered on June 23, 1970, January 11, 1977 and March 28, 1978 respectively; international registration nos. 402981 and 610136 in various classes, registered on November 20, 1973 and November 15, 1993 respectively.
The Complainant also owns several domain names using MOOG such as , , and .
The disputed domain name was originally registered on November 6, 1997. The Complainant appears to have acquired the disputed domain name some time during the 2000s. Due to a change of staffing, it allowed the disputed domain name to inadvertently lapse in November, 2014. The disputed domain name was subsequently registered by a third party and was transferred to the Respondent in September, 2015.
The Respondent is an individual from Guangxi, China.
The disputed domain name, currently, resolves to a page that advertises the disputed domain name for sale in both English and Chinese. The web page states that the disputed domain name is “Not only a domain name, But also a brand!” In pre-complaint email correspondence conducted in English, the Respondent offered to the Complainant’s Representative to sell the disputed domain name for USD 99,999. 5. Parties’ Contentions A. Complainant
The Complainant contends as follows:
Identical or Confusingly Similar
The Complainant contends that the disputed domain name and its trademark MOOG are identical. The disputed domain name contains MOOG in its entirety as the distinctive part of the disputed domain name. The generic Top-Level Domain (“gTLD”) “.net” is generally disregarded when making a comparison.
No rights or legitimate Interests
The Complainant submits that its ownership over the MOOG trademark across numerous jurisdictions grants it exclusive right over the use of the trademark. The Complainant also submits that the lack of relationship or affiliation with the Respondent, whether through sponsorship or an authorisation to use, shows the Respondent’s lack of rights and legitimate interests in the disputed domain name. Further, the Respondent had never sought or obtained any trademark registrations for MOOG.
The Complainant contends that the Respondent’s lack of use of the disputed domain name other than to offer the disputed domain name for sale — and where the price offered far exceeds the Respondent’s out-of-pocket expenses in registering the disputed domain name also supports that the Respondent has no rights of legitimate interests.
Registered and used in bad faith
The Complainant submits that at the time the disputed domain name was transferred to the Respondent, the Complainant owned numerous trademark registrations for MOOG in several jurisdictions, including China. Accordingly the Respondent is likely to have known of the Complainant at the time and, therefore, registered the disputed domain name in bad faith.
The Complainant further submits that the Respondent’s offering of the disputed domain name for sale demonstrates use in bad faith. The price offered demonstrates the Respondent’s intention to make a commercial gain from the sale of the disputed domain name which demonstrates that the Respondent is using the disputed domain name in bad faith. B. Respondent
The Respondent contends as follows:
Identical or Confusingly Similar
The Respondent contends that the disputed domain name resolves to a webpage the contents of which do not contain any information about nor does it display trademarks of the Complainant. There is therefore no identity or confusion.
No rights or legitimate Interests
The Respondent claims that it was due to the significant meaning, the simplicity of the disputed domain name and its ease to remember that it was registered.
The Respondent submits that “moog” can have other meanings such as “mass open online game”. The Respondent also argues that the disputed domain name does not necessarily relate to the main use of the webpage and can be just a combination of alphabets, such as “mooc” or “mooc inc”.
The Respondent states that it was unaware of the existence of the Complainant and its website under the disputed domain name has no mention of the Complainant. The Respondent asserts that the Complainant could have registered all other possible gTLDs related to “moog”, such as , and , but has not done so.
The Respondent contends that the Complainant’s claims over the disputed domain name, which has never been challenged since its existence in 1997, is unreasonable and malicious. Further, the Complainant has never owned the disputed domain name is evidence of the Complainant’s malicious behaviour.
The Panel takes this final submission as an allegation of Reverse Domain Name Hijacking by the Complainant.
Registered and used in bad faith
The Respondent claims that the disputed domain name had been properly registered and had been used reasonably, without any intentions of confusing or misleading users. Further, there is no similarity between their nature of businesses, trademarks or the goods and services they each provide. 6. Discussion and Findings 6.1 Language of the Proceedings
The Language of the Registration Agreement is Chinese.
The Complainant requests that the language of proceedings be English on the grounds that:
(1) the Complainant is unable to communicate in Chinese language; and
(2) the Complainant would be disadvantaged by the costs and burden arising from arranging a translation;
(3) the disputed domain name is in Latin characters;
(4) the website under the disputed domain name includes text in English and the term “moog”, which is the dominant portion of the disputed domain name, does not carry any specific meaning in the Chinese language.
The Respondent claimed that it does not understand English. The Respondent sent emails in Chinese to the Center on May 23, 2018, May 24, 2018 and May 25, 2018 requesting that Chinese be the language of the proceeding.
Paragraph 11(a) of the Rules provides that:
“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.”
The Center made a preliminary determination to:
(1) accept the Complaint as filed in English;
(2) accept a Response in either English or Chinese;
(3) appoint a Panel familiar with both languages mentioned above, if available.
The Respondent filed a response in Chinese showing that it had understood the Complaint.
The final determination of the language of the proceedings lies with this Panel.
In Groupe Industriel Marcel Dassault, Dassault Aviation v Mr Minwoo Park,WIPO Case No. D2003-0989, the panel, in deciding the language of proceedings, adopted a general principle that:
“The spirit of Paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties’ level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.”
The exchange of emails in English between the Complainant’s representative and the Respondent prior to the commencement of these proceedings on February 28, 2018, March 1, 2018, and March 3, 2018, regarding the possible sale of the disputed domain name show that the Respondent is able to communicate in English. Further, the webpage under the disputed domain name is written in both English and Chinese.
Translating the Complaint would cause unnecessary delay and expense.
These factors lead the Panel to determine to follow the Center’s preliminary determination and accept the Complaint in English and the Response in Chinese.
The Panel will render its decision in English. 6.2. Substantive Issues
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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 use in bad faith. A. Identical or Confusingly Similar
The disputed domain name , other than the gTLD “.net”, is identical to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s MOOG mark in full which, apart from the gTLD that is disregarded, is identical to the Complainant’s mark.
The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
According to section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”):
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Respondent has not been granted a license or any other authorisation to make any use of the Complainant’s trademark and had no business or any other kind of relationship (licensor, distributor) with the Complainant. Further, the Respondent is not known by the disputed domain name.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not articulated any rights or legitimate interests in the disputed domain name. It has only used the disputed domain name to resolve to a website offering the disputed domain name for sale. The only suggestion made by the Respondent as to its interests is that MOOG could mean “mass open online game”.
The Panel is not satisfied that the Respondent has any rights and legitimate interests over the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is used in bad faith.
The disputed domain name was registered by a third party following the Complainant inadvertently allowing it to lapse in 2014. It was later transferred to and registered by the Respondent. Bad faith is assessed from the date of transfer (See HSBC Finance Corporation v Clear Blue Sky Inc and Domain Manager,WIPO Case No. D2007-0062).
The Respondent clearly should have been aware of the Complainant’s trademark when it registered the disputed domain name. A cursory search of the name MOOG would have revealed the existence of the Complainant. The fact that the website under the disputed domain name specifically states that the disputed domain name is “Not only a domain name, But also a brand!” clearly shows the Respondent knows MOOG is a trademark.
The offer to sell the disputed domain name on the website under the disputed domain name and the subsequent offer to sell for USD 99,000 show the Respondent’s intent to make a commercial gain from the sale in excess of its out-of-pocket expenses (see paragraph 4(b)(i) of the Policy).
Having examined all the circumstances of the case, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The third element of paragraph 4(a) of the Policy is therefore established. 6.3 Reverse Domain Name Hijacking
It follows from the above that the Respondent’s claim of Reverse Domain Name Hijacking is not made out. The Complainant did, in fact, own the disputed domain name at one time and has been seeking to recover it. 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 the Complainant.
Douglas Clark
Sole Panelist
Date: June 30, 2018
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