Enterprise Rent-A-Car Company v. Web Pescados LLC
Claim Number: FA0706001002828
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Caroline
G. Chicoine, of Thompson Coburn LLP, One US Bank Plaza,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterpryse.com>, registered with Go Daddy Software, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 11, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 13, 2007.
On June 11, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterpryse.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 18, 2007, a Notification of Complaint and Commencement of Administrative Proceeding ("Commencement Notification"), setting a deadline of July 9, 2007 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, as well as to postmaster@enterpryse.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant was founded in 1957, and began operating under
the
Complainant is the largest rental car company in North
America, and has more than 6,500 offices in the
Between 1995 and 2005, Complainant’s total worldwide sales were in excess of $57 billion.
Complainant holds numerous trademark registrations with the
United States Patent and Trademark Office (“USPTO”) for the
Complainant has also registered the <enterprise.com> domain name to advertise its car rental services online.
Respondent is not licensed or authorized to use
Complainant’s
Respondent registered the <enterpryse.com> domain name on October 19, 2004.
Respondent is using the disputed domain name to redirect Internet users to a website which is virtually identical to the reservations page of Complainant’s website.
Respondent’s <enterpryse.com>
domain name is confusingly similar to Complainant’s
Respondent does not have any rights or legitimate interests in the <enterpryse.com> domain name.
Respondent registered and uses the <enterpryse.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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."
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the
The Panel finds that Complainant’s timely registration [with the USPTO]
and subsequent use of the
See also Enter.
Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum
Apr. 14, 2006) (finding that Complainant’s registration of the
Respondent’s <enterpryse.com>
domain name contains Complainant’s
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <enterpryse.com> domain name. Once Complainant makes out a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests under Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant
must make a prima facie showing that Respondent does not have rights or
legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the
burden shifts to Respondent to show that it does have rights or legitimate
interest in the subject domain names.
See also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make a prima facie case that a respondent lacks rights and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have rights or legitimate interests in a domain name).
From the evidence before us, we conclude that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii).
Although Respondent has not responded to the Complaint, we will examine the record to determine if there is any basis for concluding that Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
In this connection, we first observe that the WHOIS
information, which identifies Respondent as “Web
Pescados LLC,” fails to show that Respondent is commonly known by the <enterpryse.com>
domain name. We also note that Complainant
also charges, and Respondent does not deny, that Respondent is not licensed or
authorized to use Complainant’s
In addition, Complainant alleges, and Respondent does not
deny, that Respondent is using the <enterpryse.com>
domain name to redirect Internet users to a website which is virtually
identical to the reservations page of Complainant’s website. The website which resolves from the disputed
domain name prominently displays Complainant’s
It is neither a bona fide offerings [sic] of
goods or services, nor an example of a legitimate noncommercial or fair use
under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name,
confusingly similar to a registered mark, attempts to profit by passing itself
off as Complainant . . . .”
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
On the record before us, there is no dispute that Respondent
is using the domain name <enterpryse.com>
to redirect Internet users to a website which is virtually identical to the
reservations page of Complainant’s website.
In
As with the disputed domain names in America Online and Target,
Respondent’s <enterpryse.com>
domain name resolves to a webpage that is virtually identical to Complainant’s
webpage. Furthermore, the website
prominently displays Complainant’s
We therefore find that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is hereby Ordered that the <enterpryse.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 24, 2007
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