Enterprise Holdings, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2203001988802
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Elizabeth K. Brock of Harness, Dickey & Pierce, PLC, Michigan, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterpriserwntacar.com>, registered with Internet Domain Service BS Corp..
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 18, 2022; the Forum received payment on March 18, 2022.
On March 21, 2022, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <enterpriserwntacar.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 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@enterpriserwntacar.com. Also on March 28, 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 April 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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. Complainant is a car rental company. Complainant has rights in the ENTERPRISE RENT-A-CAR mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. 2,371,192, registered Jul. 25, 2000).
2. Respondent’s <enterpriserwntacar.com> domain name is identical or confusingly similar to the mark as it incorporates the mark, removes the hyphens and spaces, and swaps the fourth “e” with a “w”, and adds the “.com” generic top-level domain (“gTLD”) after.
3. Respondent lacks rights and legitimate interests in the <enterpriserwntacar.com>[i] domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its ENTERPRISE RENT-A-CAR mark in the domain name.
4. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead attracts internet users to the domain name’s resolving website, which Respondent has redirected to Complainant’s website, to other unrelated websites, and has hosted malware on.
5. Respondent registered and uses the <enterpriserwntacar.com> domain name in bad faith. Respondent has exhibited a pattern of bad faith registration and use. Respondent has attracted internet users to the domain name’s resolving website, which Respondent has redirected to Complainant’s website, to other unrelated websites, and has hosted malware on.
6. Respondent phishes for user information with the domain name.
7. Respondent registered the domain name with actual knowledge of Complainant’s rights in the ENTERPRISE-RENT-A-CAR mark.
8. Respondent typosquats with the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the ENTERPRISE-RENT-A-CAR mark. Respondent’s domain name is confusingly similar to Complainant’s ENTERPRISE-RENT-A-CAR mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <enterpriserwntacar.com> domain name and that Respondent registered and uses the domain name 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 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”).
Complainant claims rights in the ENTERPRISE RENT-A-CAR mark through its registration with the USPTO (e.g. Reg. 2,371,192, registered Jul. 25, 2000). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, as the record contains evidence of Complainant’s registration of the ENTERPRISE RENT-A-CAR mark , the Panel holds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <enterpriserwntacar.com> domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark. Under Policy ¶ 4(a)(i), incorporating a slightly misspelled version of a mark by replacing letters and removing hyphens and adding the “.com” gTLD is generally insufficient in differentiating a domain name from the mark it incorporates. See Chegg Inc. v. Company CEO / Qulity Programming, FA 1610061 (Forum Apr. 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) whereas “Respondent’s <chwgg.com> domain name is a simple misspelling of Complainant’s CHEGG.COM mark.”). From the ENTERPRISE RENT-A-CAR mark, the <enterpriserwntacar.com> domain name removes the hyphens and spaces, replaces the fourth letter “e” with a “w”, and adds the “.com” gTLD. Therefore, the Panel holds that Respondent’s <enterpriserwntacar.com> domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <enterpriserwntacar.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.) The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent is not commonly known by the <enterpriserwntacar.com> domain name, nor has Complainant authorized or licensed Respondent to use its ENTERPRISE RENT-A-CAR mark in the domain name. Under Policy ¶ 4(c)(ii), relevant WHOIS Information may demonstrate that a Respondent is not commonly known by a domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in a domain name. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). The WHOIS of record identifies Respondent as “Carolina Rodrigues”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the <enterpriserwntacar.com> domain name. Therefore, the Panel holds that Respondent is not commonly known by the <enterpriserwntacar.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <enterpriserwntacar.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a domain name incorporating the mark of another to redirect internet users to related or unrelated websites, and/or host malicious software on the domain name’s resolving website, is not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Haru Holding Corporation v. AI Matusita, FA 1679867 (Forum Aug. 11, 2016) (holding that “unrelated use [of a disputed domain name] by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use”); see also Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Complainant provides screenshots of the <enterpriserwntacar.com domain name’s resolving website and has shown that that Respondent has redirected the website to Complainant’s own webpage, to unrelated webpages, and also hosts a pop-up that prompts internet users to click. Therefore, Respondent uses the <enterpriserwntacar.com> domain name for a bona fide offering of goods or services, and/or a legitimate noncommercial or fair use under Policy ¶¶ 4(c))(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has exhibited a pattern of bad faith registration and use. Numerous adverse UDRP holdings against a respondent may be evidence of a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Jeffrey Dean Lindsay v. Lisa Katz / Domain Protection LLC, FA 1787275 (Forum July 3, 2018). (“Respondent has been involved in 28 WIPO cases. Respondent registered and used the disputed domain name in bad faith under Policy ¶4(b)(ii)”). Complainant has provided evidence that Respondent has been party to hundreds of previous adverse UDRP proceedings. Therefore, the Panel holds that Respondent has exhibited a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Complainant argues that Respondent registered and uses the <enterpriserwntacar.com> domain name in bad faith by phishing for user information. Phishing for user information, whether on a resolving website or in emails, may demonstrate bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). The record supports Complainant’s argument that the resolving website of the <enterpriserwntacar.com> domain name features a fake pop-up designed to steal user information. Therefore, the Panel holds that Respondent registered and uses the <enterpriserwntacar.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the <enterpriserwntacar.com> domain name with actual knowledge of Complainant’s rights in the ENTERPRISE RENT-A-CAR mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a mark into a domain name, as well as Complainant’s use of the domain name’s resolving website. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Because the <enterpriserwntacar.com> domain name contains Complainant’s mark, with a misspelling, the Panel holds that Respondent registered the domain name with actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
The Panel finds 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 <enterpriserwntacar.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 3, 2022
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