WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Moog Inc. v. Zhang Xin Yuan, Shang Hai Wei Te Rui Shi Ye Fa Zhan You Xian Gong Si

Case No. D2017-1586

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 Zhang Xin Yuan, Shang Hai Wei Te Rui Shi Ye Fa Zhan You Xian Gong Si of Shanghai, China.

2. The Domain Name and Registrar

The disputed domain name <moog-china.com> is registered with HiChina Zhicheng Technology Ltd. (the "Registrar").

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on August 16, 2017. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 17, 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 August 17, 2017, the Center transmitted an email in English and Chinese regarding the language of the proceeding to the Parties. On August 20, 2017, the Complainant requested that English be the language of the proceeding and filed an amended Complaint. 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 in English and Chinese of the Complaint, and the proceedings commenced on August 23, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 14, 2017.

The Center appointed Matthew Kennedy as the sole panelist in this matter on September 26, 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 is a designer, manufacturer and integrator of precision control components and systems used in aircraft, satellites, space vehicles, launch vehicles, missiles, automated industrial machinery, wind turbines and marine and medical equipment. The Complainant's name is the founders' surname. The Complainant owns multiple trademark registrations including United States trademark registration number 893181 for MOOG in a particular script (the "MOOG logo") registered from June 23, 1970 (with a claim of first use in commerce in April 1951) and specifying goods in international class 9 including servomechanism components such as servovalves; and Chinese trademark registration number 1141100 for MOOG, registered from January 7, 1998, and Chinese trademark registration number 1155101 for 穆格, registered from February 28, 1998, both specifying injection-moulding machines and other goods in international class 7. Those trademark registrations remain current. The Complainant also operates an official website at "www.moog.com" where it provides information about itself and its products.

The Respondent is the individual and company listed in the Registrar's WhoIs database as the registrant of the disputed domain name. The disputed domain name was registered on April 20, 2015 and resolves to the Respondent company's website. The website, which is in Chinese, displays a range of mechanical and electronic equipment and offers to provide, among other things, products produced by the Complainant, including a servocontroller and a servovalve. The website previously displayed the Complainant's MOOG logo before the Respondent's company name and the word MOOG or 穆格before the names of various products.

5. Parties' Contentions

A. Complainant

The disputed domain name is confusingly similar to the Complainant's MOOG trademark. It reproduces that trademark in its entirety, adding the geographically descriptive term "China".

The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not sponsored by, or affiliated with, the Complainant in any way. The Complainant has not given the Respondent permission to use its trademarks in any way. The Respondent is not commonly known by the disputed domain name. The Respondent uses the disputed domain name to redirect to a website that imitates the Complainant's official website and that formerly displayed the Complainant's logo. The metadata for the Respondent's website specifically refers to the Complainant and its trademark.

The disputed domain name was registered and is being used in bad faith. The Respondent has demonstrated a knowledge of, and familiarity with, the Complainant's brand and business. Its website indicates that it provides original MOOG products and contains a link to a page where Internet users can view and inquire about MOOG products sold by the Respondent without the Complainant's consent. It creates a likelihood of confusion with the Complainant and its trademarks by copying the design, color, scheme and pictures on the Complainant's website and attempting to profit from such confusion by selling the Complainant's products without authority. The Respondent's website also disrupts the Complainant's business.

B. Respondent

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

6. Discussion and Findings

6.1 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 Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.

The Complainant requests that the language of the proceeding be English. Its main reasons are that it is unable to communicate in Chinese, hence translation of the Complaint would unfairly disadvantage and burden the Complainant and delay the proceedings; and the disputed domain name is comprised of Latin characters and includes an English word. The Respondent did not comment on the language request.

Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293.

The Panel observes that the Complaint in this proceeding was filed in English. Having received notice of the Complaint in Chinese and English, the Respondent has not expressed any wish to respond to the Complaint or otherwise participate in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.

Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed.

6.2 Analysis and Findings

Paragraph 4(a) of the Policy provides that the complainant must prove each of the following elements:

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

(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.

A. Identical or Confusingly Similar

Based on the evidence submitted, the Panel finds that the Complainant has rights in the MOOG trademark.

The disputed domain name incorporates the Complainant's MOOG trademark in its entirety as its only distinctive element.

The disputed domain name contains the additional element "-china" which is a country name. As a mere geographical term, the additional element "china" is not sufficient to dispel the confusing similarity of the disputed domain name to the Complainant's trademark. See Playboy Enterprises International, Inc. v. Zeynel Demirtas, WIPO Case No. D2007-0768. The addition of the hyphen is mere punctuation and too minor a difference to dispel confusing similarity.

The disputed domain name also contains the generic Top-Level Domain ("gTLD") suffix ".com" but a gTLD suffix is generally disregarded in the comparison between a domain name and a trademark for the purposes of assessing confusing similarity. See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. H.c. F. Porsche AG v. zhanglei, WIPO Case No. D2014-0080.

Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:

(i) before any notice to [the respondent] 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] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark 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 trademark or service mark at issue.

As regards the first circumstance above, the disputed domain name, which is confusingly similar to the Complainant's MOOG trademark, is being used in connection with a website that offers to provide, among other things, goods produced by parties other than the Complainant. Further, the Complainant submits that it has not given the Respondent permission to use its trademarks in any way and that the Respondent is not sponsored by or affiliated with the Complainant in any way. While some of the goods offered on the website are allegedly produced by the Complainant, the website uses the Complainant's trademarks in such a way as to give the impression that it is affiliated with the Complainant, an impression not dispelled by the Respondent's company information on the website. These facts show that the Respondent's use of the disputed domain name is not in connection with a bona fide offering of goods or services. See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.

As regards the second circumstance above, the Respondent's name is recorded in the Registrar's WhoIs database as "Zhang Xin Yuan" and "Shang Hai Wei Te Rui Shi Ye Fa Zhan You Xian Gong Si". The Respondent's website also indicates that the Respondent company is known as Shanghai Wei Te Rui Industrial Development Co. Ltd. None of those names is "Moog China" or "Moog". There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.

As regards the third circumstance above, the disputed domain name resolves to a commercial website. That is not a legitimate noncommercial or fair use of the disputed domain name covered by the third circumstance of paragraph 4(c) of the Policy.

In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that case because it did not respond to the Complaint.

Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:

"(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] 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 [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location."

The disputed domain name was registered in 2015, many years after the Complainant obtained its trademark registrations, including in China where the Respondent is located. The disputed domain name incorporates the Complainant's MOOG trademark in its entirety as its only distinctive element. The addition of the element "-china" gives the impression that it resolves to the Complainant's Chinese website or a Chinese website affiliated with the Complainant. The content of the website to which the disputed domain name resolves confirms the impression that it is affiliated with the Complainant by displaying the Complainant's MOOG and 穆格 trademarks and offering what are alleged to be the Complainant's products. This all indicates to the Panel that the Respondent was aware of the Complainant and its MOOG trademark at the time that it registered the disputed domain name and deliberately chose to register it as part of the disputed domain name in bad faith.

The Respondent uses the disputed domain name, which is confusingly similar to the Complainant's MOOG trademark, in connection with a website that is falsely presented as if it were affiliated with the Complainant. The disputed domain name operates by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the website. This use is intentional and for commercial gain as contemplated by paragraph 4(b)(iv) of the Policy.

Prior to the date of this decision the disputed domain name ceased to resolve to any active website. This may be further evidence of bad faith but, in any case, does not alter the Panel's conclusions.

Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in 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.com> be transferred to the Complainant.

Matthew Kennedy
Sole Panelist
Date: October 2, 2017