Enterprise Holdings, Inc. v. Muhammad Abuzar
Claim Number: FA2108001958978
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Hadi S. Al-Shathir of Thompson Coburn LLP, Missouri, USA. Respondent is Muhammad Abuzar (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myehtrip.net>, registered with NameCheap, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 10, 2021; the Forum received payment on August 10, 2021.
On August 10, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <myehtrip.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 August 13, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 2021 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@myehtrip.net. Also on August 13, 2021, 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 September 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <myehtrip.net> domain name is confusingly similar to Complainant’s MYEHTRIP mark.
2. Respondent does not have any rights or legitimate interests in the <myehtrip.net> domain name.
3. Respondent registered and uses the <myehtrip.net> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Enterprise Holdings, Inc., is the world’s largest car rental operator. Complainant holds a registration for the MYEHTRIP mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,549,066, registered May 1, 2018).
Respondent registered the <myehtrip.net> domain name on May 8, 2020, and uses it to distribute malware.
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 Panel finds that Complainant has rights in the MYEHTRIP mark through its registration with the USPTO. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <myehtrip.net> domain name incorporates Complainant’s mark in its entirety, adding only the gTLD “.net.” Adding a gTLD to a complainant’s mark does not distinguish the domain name from the mark. See Verragio, LTD. v. Lance Liao, FA 1445159 (Forum July 5, 2012) (“Respondent’s <verragio.net> domain name is identical to Complainant’s VERRAGIO mark, since Respondent has merely added the generic top-level domain (“gTLD”) ‘.net.’”); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”); see additionally Thom Browne, Inc. v. Huili Zhang, FA 1358629 (Forum Dec. 22, 2010) (finding, “The addition of the gTLD ‘.net’ also has no effect on the Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that Respondent’s <myehtrip.net> domain name is virtually identical to Complainant’s MYEHTRIP mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the <myehtrip.net> domain name because Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the MYEHTRIP mark. The WHOIS information identifies “Muhammad Abuzar” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant also argues that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the disputed domain name and Complainant’s logo to lure Internet users into downloading harmful malware. Passing off as a complainant and offering malicious software does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots showing that Respondent’s website at the disputed domain name gives the appearance of a website sponsored by or affiliated with Complainant, by making use of Complainant’s MYEHTRIP mark and logo, and contains a pop-up ad for “Wave Browser,” which is harmful malware. Respondent’s website also redirects users to other websites that contain malware schemes, such as <beastbuying.com>. The Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <myehtrip.net> domain name in bad faith to engage in an improper malware scheme. Use of a disputed domain name to distribute malware demonstrates a bad faith attempt to attract users for commercial gain under Policy ¶ 4(b)(iv) and general bad faith under Policy ¶ 4(a)(iii). See Google, Inc. v. Petrovich, FA 1339345 (Forum Sept. 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)); see also Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”); see additionally Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv) and Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(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 <myehtrip.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 8, 2021
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