The Complainant is Micro Motion, Inc., Boulder, Colorado, of United States (“US” or “USA”), represented by The Ollila Law Group, LLC, United States of America.
The Respondent is N/A, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name <mikromotion.com> (the “Disputed Domain Name”) is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 13, 2009. On April 14, 2009, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the Disputed Domain Name. On April 14, 2009, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 17, 2009. On April 29, 2009, an informal communication was sent to the Center (copied to the Complainant) from the email address listed for the Administrative and Technical contacts for the Dispute Domain Name.
In the informal communication from Mr. Chan, who purported to be the registrant of the Disputed Domain Name, he noted his willingness to cancel the registration or transfer the registration to the Complainant. No formal request was received by the Center from the Complainant for suspension of the proceedings, based on this apparent willingness to give effect to the Complainants requested course of action, namely transfer of the Disputed Domain Name to it.
In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2009. The Respondent did not submit a formal response. Accordingly, the Center notified the Respondent's default on May 8, 2009.
The Center appointed Michael D. Cover as the sole panelist in this matter on May 18, 2009. 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 Colorado, USA corporation that manufactures and sells flow meters in the USA and throughout the world. It began manufacturing and selling flow meters under the trademark MICRO MOTION as early as 1977. It has numerous trademark registrations for its trademark MICRO MOTION around the world. The Complainant owns domain names, including <micromotion.com> and <micromotion.org>.
The Respondent is “N/A”, with an administrative and technical contact in “New Territories, Hong Kong.”
5. Parties' Contentions
A. Complainant
The Complainant asserts that the Disputed Domain Name is confusingly similar to the MICRO MOTION trademarks, in which it has rights. It also asserts that the addition of the gTLD “.com” is irrelevant in determining whether the trademark MICRO MOTION is confusingly similar to the Disputed Domain Name. It also submits that the substitution of the letter “k” for the “c” in the word “micro” is in sufficient to distinguish it from the Complainant's trademark.
The Complainant asserts that the Respondent has no rights or legitimate interests in the Complainant's trademark. It submits that the information found at <mikromotion.com> implies that the Respondent is related to the Complainant; this includes links to sierraistruments.com/flowmeter, a competitor of the Complainant. It cites, amongst other decisions, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000).
The Complainant states that it has never licensed or authorized the Respondent to use its MICRO MOTION trademark. It says that there is no evidence that the Respondent is commonly known as “mikromotion” and that the Respondent's use of the Disputed Domain Name is not legitimate.
The Complainant asserts that the Disputed Domain Name has been registered and used in bad faith. It infers that the Respondent had notice of the Complainant's rights, particularly in view of the links to the third party flow control product companies from the website at the Disputed Domain Name.
The Complainant requests that the Disputed Domain Name be transferred to it.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Panel has decided these proceedings on the basis of the submissions of the Complainant, as the Respondent did not file a formal Response in compliance with the Rules. The Panel has taken note of the April 29 communication which does not in any event alter the outcome. As is usual in such cases, the Panel has proceeded with caution.
A. Identical or Confusingly Similar
The Complainant's trademark MICRO MOTION and the Disputed Domain Name are confusingly similar. The addition of the gTLD and the substitution of the “k” for the “c” in the word “micromotion” do not alter the identity of the Disputed Domain Name and the Panel accepts the Complainant's arguments in that regard. The trade mark MICRO MOTION is effectively near identical to the Disputed Domain Name.
B. Rights or Legitimate Interests
The Panel also accepts the Complainant's arguments with regard to the Respondent having no rights or legitimate interests in the Disputed Domain Name. The Panel accepts the Complainant's submission that it has not licensed or authorised the Respondent to use the Disputed Domain Name and that the Respondent is not known by the Disputed Domain Name. The Respondent has not rebutted these assertions.
C. Registered and Used in Bad Faith
The Panel accepts that the Respondent has used the Disputed Domain Name in bad faith. The links to third party flow control product websites from the website at the Disputed Domain Name show this.
The registration in bad faith is perhaps less clear. In this case, the Disputed Domain Name was registered on December 19, 2008. This is more than 30 years after the commencement of the use of the MICRO MOTION trademark by the Complainant. The links to the third party flow meter product websites make it to the Panel clear that the Respondent was aware of the Complainant's trade mark and it is a reasonable inference that it was so aware when it registered the Disputed Domain Name in December 2008.
Accordingly, the Panel accepts that the Disputed Domain Name has been registered and is being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <mikromotion.com>, be transferred to the Complainant.
Michael D. Cover Sole Panelist
Dated: June 1, 2009
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