Tanger Factory Outlet Centers, Inc. v.
Claim Number: FA0803001157271
Complainant is Tanger Factory Outlet Centers, Inc. (“Complainant”), represented by Gary
L. Beaver, of Nexsen Pruet, PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <tangeroutletriverhead.com> and <tangerotlet.com> registered with Domaindoorman, LLC, <tangeroutletlocustgrove.com> and <shoptanger.com> registered with Belgiumdomains, LLC, and <tanger-outlet.com> registered with Capitoldomains LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
On
On March 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 15, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@shoptanger.com, postmaster@tangeroutletlocustgrove.com, postmaster@tangeroutletriverhead.com, postmaster@tangerotlet.com and postmaster@tanger-outlet.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <shoptanger.com>, <tangeroutletlocustgrove.com>, <tangeroutletriverhead.com>, <tangerotlet.com> and <tanger-outlet.com> domain names are confusingly similar to Complainant’s TANGER and TANGER OUTLETS marks.
2. Respondent does not have any rights or legitimate interests in the <shoptanger.com>, <tangeroutletlocustgrove.com>, <tangeroutletriverhead.com>, <tangerotlet.com> and <tanger-outlet.com> domain names.
3. Respondent registered and used the <shoptanger.com>, <tangeroutletlocustgrove.com>, <tangeroutletriverhead.com>, <tangerotlet.com> and <tanger-outlet.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Tanger Factory Outlet Centers, Inc., uses the TANGER mark in order to promote its retail
shopping outlets and retail shopping centers featuring general consumer goods. Complainant owns a trademark registration
with the United States Patent and Trademark Office (“USPTO”) for the TANGER
mark (Reg. No. 78,657,632 filed
Respondent registered the <shoptanger.com> domain name on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Even though Respondent registered the <tanger-outlet.com> domain name on
Complainant contends that Respondent’s disputed domain names are confusingly
similar to Complainant’s marks under Policy ¶ 4(a)(i). Respondent’s <shoptanger.com>
domain name contains Complainant’s TANGER mark in its entirety, and adds the
generic term associated with Complainant’s business “shop.” The Panel finds that a domain name which
contains a complainant’s mark and adds a generic term with an obvious
relationship to a complainant’s business is confusingly similar for purposes of
Policy ¶ 4(a)(i). See Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc.,
D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly
similar to the complainant's mark since it merely adds the word “auction” used
in its generic sense). In addition, Respondent’s
<tangerotlet.com> and <tanger-outlet.com>
domain names contain a misspelling of Complainant’s TANGER OUTLETS mark,
and one adds a hyphen. The Panel finds
that a misspelled version of a complainant’s mark and adding a hyphen does not
create a distinctive domain name and is confusingly similar pursuant to Policy
¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441
(WIPO July 13, 2000) (finding that a domain name which differs by only one
letter from a trademark has a greater tendency to be confusingly similar to the
trademark where the trademark is highly distinctive) Respondent’s <tangeroutletlocustgrove.com> and <tangeroutletriverhead.com> domain
names contain a mispelled version of Complainant’s TANGER OUTLETS mark and add
a geographic location. The Panel finds
that a domain name which contains a mispelled version of complainant’s mark and
adds a generic term describing a geographic location is confusingly similar
pursuant to Policy ¶ 4(a)(i). See Net2phone
Inc. v. Netcall SAGL, D2000-0666 (WIPO
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant must show that Respondent lacks all rights and
legitimate interests in the disputed domain names to meet its initial burden
under Policy ¶ 4(a)(ii). After Complainant has made
a prima facie case, the burden shifts
to Respondent to demonstrate that it has those rights and interests. The Panel concludes that Complainant’s
assertion that Respondent lacks rights and legitimate interests is sufficient
to make a prima facie case under
Policy ¶ 4(a)(ii).
See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Because Respondent has failed to respond to the Complaint,
the Panel presumes that Respondent lacks all rights and legitimate interests in
the disputed
domain names. See Law Soc’y of Hong Kong v.
Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A
respondent is not obligated to participate in a domain name dispute . . . but
the failure to participate leaves a respondent vulnerable to the inferences
that flow naturally from the assertions of the complainant and the tribunal
will accept as established assertions by the complainant that are not unreasonable.”);
see also
Vanguard Group, Inc. v. Collazo, FA
349074 (Nat. Arb. Forum
Complainant contends that it has never licensed or otherwise
authorized Respondent to use the TANGER and TANGER OUTLETS marks. The WHOIS information lists the registrant as
“International Names Ltd.” and “Caribbean Online International Ltd.,” thereby
not indicating that Respondent is commonly known by the disputed domain names. The Panel concludes that Respondent has not
demonstrated rights or legitimate interests in the disputed domain names
pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines,
Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent is using the disputed domain names to advertise
links to competing websites and also displaying unrelated links. Complainant asserts that Respondent has not
demonstrated a right to or legitimate interest in the disputed domain names by
using them to redirect Internet users to competing and unrelated websites. The Panel finds that Respondent’s use of the
disputed domain names does not evidence a bona
fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Golden Bear
Int’l, Inc. v. Kangdeock-ho, FA 190644
(Nat. Arb. Forum Oct. 17, 2003)
(“Respondent's use of a domain name confusingly similar to Complainant’s mark
to divert Internet users to websites unrelated to Complainant's business does
not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy
¶ 4(c)(iii).”); see also Coryn Group, Inc. v. Media Insight,
FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not
using the domain names for a bona fide offering of goods or services nor
a legitimate noncommercial or fair use because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The website that
resolves from the disputed domain names links Internet users to Complainant’s
competitors. The Panel concludes that
this use is likely to disrupt the business of Complainant under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum
In addition, Respondent has a long history of registering
domain names infringing upon the trademark rights of others, and has been
ordered by previous UDRP panels to transfer the disputed domain names to the
respective complainants. See Dairyland Ins. Co. v.
Int’. Names Ltd., FA 1125172 (Nat. Arb. Forum
Lastly, Respondent is using the disputed domain names for the purpose of collecting
click-through fees for each misdirected Internet user connected to the disputed
domain names. In these cases, the Panel
infers click-through fees are being collected.
Internet users searching for Complainant’s website will likely be
confused into thinking that the disputed domain names are affiliated with or
sponsored by Complainant. The Panel
finds that Respondent’s registration and use of the disputed domain names in
order to cause confusion and collect referral fees for each misdirected
Internet user is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See H-D
Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan.
8, 2003) (finding that the disputed domain name was registered and used in bad
faith pursuant to Policy ¶ 4(b)(iv) through the
respondent’s registration and use of the infringing domain name to
intentionally attempt to attract Internet users to its fraudulent website by
using the complainant’s famous marks and likeness); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <shoptanger.com>, <tangeroutletlocustgrove.com>, <tangeroutletriverhead.com>, <tangerotlet.com> and <tanger-outlet.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: May 5, 2008
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