Tanger Properties, L.P. North Carolina Limited Partnership v. Zhong Qing Ma
Claim Number: FA2205001994703
Complainant is Tanger Properties, L.P. North Carolina Limited Partnership (“Complainant”), represented by Stephen Shaw of Womble Bond Dickinson (US) LLP, North Carolina, USA. Respondent is Zhong Qing Ma (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tanger-outlets.com>, (‘the Domain Name’) registered with Epik Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 3, 2022; the Forum received payment on May 4, 2022.
On May 3, 2022, Epik Inc. confirmed by e-mail to the Forum that the <tanger-outlets.com> Domain Name is registered with Epik Inc. and that Respondent is the current registrant of the name. Epik Inc. has verified that Respondent is bound by the Epik Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 5, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@tanger-outlets.com. Also on May 5, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 27, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant owns the trademarks TANGER and TANGER OUTLETS registered, inter alia, in the USA for retail shopping services with first use of TANGER recorded as 1990. The Complainant owns the domain name tangeroutlet.com without an ‘s’.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trademarks containing them in their entirety, and adding a hyphen, (the generic term outlets in the case of the TANGER mark) and the gTLD “.com” which do not prevent confusing similarity between the Domain Name and the Complainant’s marks.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The web site connected with the Domain Name offers competing retail services. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith, disrupting the Complainant’s business and diverting Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trademarks TANGER and TANGER OUTLETS registered, inter alia, in the USA for retail shopping services with first use of TANGER recorded as 1990. It owns tangeroutlet.com without an ‘s’.
The Domain Name registered in 2022 has been used for competing retail services.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of the Complainant’s TANGER mark (registered, inter alia, in the USA for retail services with first use recorded as 1990) the generic term ‘outlets’, a hyphen and the gTLD “.com”. It also only differs from the Complainant’s TANGER OUTLETS mark by a hyphen and the gTLD. The Complainant owns the domain name tangeroutlet.com without an ‘s’.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Nor does the addition of a hyphen. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).) Accordingly the Panel agrees that the addition of the generic term ‘outlets’ and a hyphen to the Complainant's TANGER mark and the addition of a hyphen to the Complainant’s TANGER OUTLETS mark does not prevent confusing similarity between these trademarks and the Domain Name pursuant to the Policy.
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. There is no evidence that the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name offers competing retail services. The Panel finds this use was confusing. As such it could not amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.). The Respondent has not answered this Complaint or explained why it should be allowed to use the Complainant’s distinctive TANGER trade mark in this way.
The Domain Name also appears to be a typosquatting registration differing only by a hyphen and a letter ‘s’ from the Complainant’s url tangeroutlet.com and reflecting its trade mark registration TANGER OUTLETS adding a hyphen and a gTLD, a necessary part of a domain name, to it. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site for competing retail services is confusing and disruptive in that visitors to the site might reasonably believe it was connected to or approved by the Complainant.
Accordingly, the Panel holds 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 trademarks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iv) and 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tanger-outlets.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 27, 2022
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