Enterprise Holdings, Inc. v. Zhichao Yang
Claim Number: FA2103001935415
Complainant is Enterprise Holdings, Inc. ("Complainant"), represented by Josh A. Partington of Harness, Dickey & Pierce, PLC, Virginia, USA. Respondent is Zhichao Yang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterpriseaurofinance.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 4, 2021; the Forum received payment on March 4, 2021. The Complaint was received in English.
On March 5, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by email to the Forum that the <enterpriseaurofinance.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 March 10, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of March 30, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@enterpriseaurofinance.com. Also on March 10, 2021, the Chinese and English language Written Notice of the Complaint, notifying Respondent of the email 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 April 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
Complainant owns the ENTERPRISE, ENTERPRISE CAR SALES, and ENTERPRISE AUTO FINANCE marks, which it and related entities use for various vehicle-related services. Complainant (together with its predecessor and licensees) has used the ENTERPRISE mark in the United States since 1974 and now operates in countries throughout the world, and has used the ENTERPRISE CAR SALES mark since 1962. Complainant owns trademark registrations for ENTERPRISE in the United States and China.
Respondent registered the disputed domain name <enterpriseaurofinance.com> in August 2020. The domain name currently resolves to a parked page composed of pay-per-click links to websites offering car financing services similar to those offered by Complainant. Complainant states that Respondent is not commonly known by the disputed domain name and that Complainant has not licensed or otherwise permitted Respondent to use its marks.
Complainant contends on the above grounds that the disputed domain name <enterpriseaurofinance.com> is confusingly similar to its ENTERPRISE and related marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. The Written Notice of the Complaint was served upon Respondent in both English and Chinese, and Respondent has made no objection to Complainant's request that the proceeding be conducted in English. For substantially the same reasons as those set forth in many prior decisions involving Respondent, e.g., Securian Financial Group, Inc. v. Yang Zhi Chao, FA 1935104 (Forum Mar. 31, 2021); Mercury Insurance Services, LLC v. YangZhiChao, FA 1933409 (Forum Mar. 31, 2021); Morgan Stanley v. Zhichao Yang, FA 1932877 (Forum Mar. 22, 2021); Volvo Trademark Holding Aktiebolag v. 杨智超 (Zhichao Yang), D2020-3507 (WIPO Mar. 16, 2021); Altria Group, Inc. & Altria Group Distribution Co. v. 杨智超 (Yang Zhi Chao), D2020-3395 (WIPO Mar. 15, 2021), the Panel decides that English shall be the language of this proceeding.
The disputed domain name <enterpriseaurofinance.com> incorporates Complainant's registered ENTERPRISE trademark, adding the generic term "auto finance" (misspelled as "aurofinance") and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Enterprise Holdings, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1928789 (Forum Feb. 17, 2021) (finding <enerpriseautofinance.com> confusingly similar to ENTERPRISE); Enterprise Holdings, Inc. v. Qian Jihai, FA 1882533 (Forum May 7, 2020) (finding <enterpriseautofiance.com> confusingly similar to ENTERPRISE); Enterprise Holdings, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1879695 (Forum Mar. 7, 2020) (finding <enterpriseautofinane.com> confusingly similar to ENTERPRISE); Enterprise Holdings, Inc. v. mengdanqian / QMD, FA 1876551 (Forum Jan. 27, 2020) (finding <enterprisautofinance.com> confusingly similar to ENTERPRISE); Enterprise Holdings, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1873874 (Forum Jan. 12, 2020) (finding <enterpriseautofinsnce.com> confusingly similar to ENTERPRISE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to display pay-per-click links to competitors of Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Enterprise Holdings, Inc. v. Qian Jihai, supra (finding lack of rights or interests in similar circumstances); Enterprise Holdings, Inc. v. mengdanqian / QMD, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark and is using it to display pay-per-click links to competitors of Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Enterprise Holdings, Inc. v. Qian Jihai, supra (finding bad faith in similar circumstances); Enterprise Holdings, Inc. v. mengdanqian / QMD, supra (same). The Panel is also mindful of Respondent's history of bad faith domain name registrations and adverse determinations under the Policy. See Securian Financial Group, Inc. v. Yang Zhi Chao, supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterpriseaurofinance.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 5, 2021
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