Tanger Properties, L.P. North Carolina Limited Partnership v. Ma Zhong Qing
Claim Number: FA2204001994455
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 Ma Zhong Qing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tangeroutletsdeerpark.com>, <tangeroutletshiltonhead.com>, <tangeroutletsnearme.com>, <tangeroutlethours.com>, <tangeroutletsnationalharbor.com>, <tangeroutletmyrtlebeach.com>, <tangeroutletshours.com>, <tangeroutletnearme.com>, <tangeroutletslancaster.com>, and <tangeroutletsstores.com>, registered with Hongkong Kouming International Limited.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2022; the Forum received payment on May 4, 2022.
On May 6, 2022, Hongkong Kouming International Limited confirmed by e-mail to the Forum that the <tangeroutletsdeerpark.com>, <tangeroutletshiltonhead.com>, <tangeroutletsnearme.com>, <tangeroutlethours.com>, <tangeroutletsnationalharbor.com>, <tangeroutletmyrtlebeach.com>, <tangeroutletshours.com>, <tangeroutletnearme.com>, <tangeroutletslancaster.com>, and <tangeroutletsstores.com> domain names are registered with Hongkong Kouming International Limited and that Respondent is the current registrant of the names. Hongkong Kouming International Limited has verified that Respondent is bound by the Hongkong Kouming International Limited 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 9, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 31, 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@tangeroutletsdeerpark.com, postmaster@tangeroutletshiltonhead.com, postmaster@tangeroutletsnearme.com, postmaster@tangeroutlethours.com, postmaster@tangeroutletsnationalharbor.com, postmaster@tangeroutletmyrtlebeach.com, postmaster@tangeroutletshours.com, postmaster@tangeroutletnearme.com, postmaster@tangeroutletslancaster.com, postmaster@tangeroutletsstores.com. Also on May 9, 2022, the Chinese and English language 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 June 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Registration Agreement for the disputed domain names is written in Chinese, thereby making the language of the proceedings Chinese for the disputed domain names.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the resolving websites are in English; Respondent has received the Notice of Complaint and Commencement Notification in Chinese and has chosen not to respond to the Complaint. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it specializes in providing retail shopping outlets and retail shopping centers featuring general consumer goods. Complaint additionally specializes in real estate management and business management in the field of shopping centers and retail shopping outlets. Complainant has rights in the TANGER and TANGER OUTLETS marks through their registrations in the United States in 2006.
Complainant alleges that the disputed domain names are identical or confusingly similar to its TANGER or TANGER OUTLETS marks as they incorporate one of the marks in its entirety and merely add a variety of geographic and generic/descriptive terms, such as “Deer Park”, “Hilton Head”, “Lancaster”, “hours”, “stores”, “near me”, along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its TANGER mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers unrelated goods for sale on the resolving websites.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent disrupts Complainant’s business for commercial gain by offering for sale unrelated goods on the disputed domain names’ resolving websites.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks TANGER and TANGER OUTLETS, with rights dating back to 2006, and uses them to provide retail shopping outlets and shopping centers, and real estate management and business management in the field of shopping centers and retail shopping outlets.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain names resolve to websites that offer products that are not related to Complainant.
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 disputed domain names each incorporate one of Complainant’s marks (TANGER or TANGER OUTLETS) in its entirety and merely add a variety of geographic and generic/descriptive terms, such as “Deer Park”, “Hilton Head”, “Lancaster”, “hours”, “stores”, “near me”, along with the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding generic, descriptive, or geographic terms along with the “.com” gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Ticketmaster Corp. v. Kumar, FA 744436 (Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”); see also General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS Information may demonstrate that a Respondent is not commonly known by a disputed 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). Here, the WHOIS of record identifies the registrant as “Ma Zhong Qing”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving websites offer products that are not related to those of Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name); see also Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Thus the Panel finds that Respondent fails to use the disputed domain names to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving websites promote products unrelated to Complainant’s business. Such use of a domain name can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Fossil, Inc. v. wwwfossil-watch.org c/o Hostmaster, Case No. FA 335513 (Forum Nov. 9, 2004) (finding bad faith where respondent attempted to profit from the fame of complainant’s trademark by attracting internet traffic to his website); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)). The Panel therefore finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tangeroutletsdeerpark.com>, <tangeroutletshiltonhead.com>, <tangeroutletsnearme.com>, <tangeroutlethours.com>, <tangeroutletsnationalharbor.com>, <tangeroutletmyrtlebeach.com>, <tangeroutletshours.com>, <tangeroutletnearme.com>, <tangeroutletslancaster.com>, and <tangeroutletsstores.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 7, 2022
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