Enterprise Rent-A-Car
Company v. James D'Souza
Claim Number: FA0707001045134
PARTIES
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by David
R. Haarz, of Harness, Dickey & Pierce, P.L.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecarrentals.com>,
registered with Lead Networks Domains Pvt. Ltd.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on July 24, 2007; the
National Arbitration Forum received a hard copy of the Complaint on July 26, 2007.
On August 8, 2007, Lead Networks Domains Pvt. Ltd. confirmed by
e-mail to the National Arbitration Forum that the <enterprisecarrentals.com>
domain name is registered with Lead Networks
Domains Pvt. Ltd. and that the Respondent is the current registrant of
the name. Lead Networks Domains Pvt. Ltd. has verified that Respondent is
bound by the Lead Networks Domains Pvt. Ltd.
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 August 13, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of September 4, 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,
and to postmaster@enterprisecarrentals.com
by e-mail.
A timely Response was received on September
4, 2007. However, the Response
was only received in electronic format, and therefore the Forum does not
consider this Response to be in compliance with ICANN Rule 5(a). In the interest of justice, the Panel has
nonetheless considered the Response despite the nonconformity.
A timely Additional Submission was received from Complainant on
September 7, 2007 in accordance with The Forum’s Supplemental Rule 7.
On September 10, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
Shortly after appointment of the Panel, the
Parties submitted a joint request for a stay of this proceeding until October
25, 2007, pursuant to Supp. Rule 6(b)(i). The Panel granted the stay on September 12,
2007, ordering that the stay would be lifted and the proceeding continued upon
the request of any party.
On October 3, 2007, Complainant filed a request that
the stay be lifted and the case be reinstated. Accordingly, the Panel lifted the stay on
October 3, 2007, and ordered that the matter proceed for resolution under the
Policy.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is the largest auto rental company in
Complainant further contends that Respondent lacks rights or legitimate
interests in respect of the disputed domain name. Complainant alleges that the domain name
resolves to a web page containing links to Complainant and its competitors;
that Respondent is familiar with Complainant and its trademark rights; and that
Respondent’s use of the domain name is neither a bona fide offering of goods and services nor a legitimate
noncommercial or fair use. Complainant
states that it has not licensed or otherwise permitted Respondent to use its
marks, and alleges that Respondent is using the domain name in an attempt to
divert Internet traffic to its website.
Finally, Complainant contends that Respondent registered and is using
the disputed domain name in bad faith.
Complainant alleges that Respondent is deliberately using Complainant’s
marks to attract, for commercial gain, Internet users to its website by
creating a likelihood of confusion with Complainant’s marks.
B. Respondent
Respondent denies all of Complainant’s allegations, denies any
awareness of Complainant’s trademarks, and says he has never been to the
C. Additional Submissions
Paragraph 12 of ICANN’s Rules for Uniform Domain Name Dispute
Resolution Policy (the “Rules”) vests the Panel with sole discretion to request
further statements or documents from either of the Parties. In this case the Panel considers that the
Complaint and Response provide the Panel with a sufficient basis to rule upon
the present matter. Having reviewed those
documents together with Complainant’s Additional Submission, the Panel finds no
circumstances present that warrant supplementation of the record. The Panel therefore declines to consider
Complainant’s Additional Submission.
FINDINGS
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 Respondent registered and has used the disputed
domain name in bad faith.
DISCUSSION
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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
The disputed domain name, <enterprisecarrentals.com>,
contains the distinctive part of Complainant’s ENTERPRISE RENT-A-CAR mark,
“enterprise,” appended to the generic phrase “car rentals,” which is synonymous
with the descriptive portion of Complainant’s mark. The Panel therefore concludes that the
disputed domain name is confusingly similar to Complainant’s mark.
Complainant has made a prima facie showing that Respondent lacks rights or legitimate
interests in respect of the disputed domain name, and the burden therefore
shifts to Respondent to rebut this showing with evidence of its rights or
legitimate interests. See, e.g., Am. Online, Inc. v. Thricovil,
FA 638077 (Nat. Arb. Forum Mar. 22, 2006).
Respondent claims to be developing a car rental business in
Whether or not Respondent is responsible for
the content of the website for which the domain name has been used, it seems
clear to the Panel that Respondent acquired and is using the disputed domain
name in order to exploit the value of Complainant’s marks, either by attempting
to profit from the diversion of Internet traffic seeking Complainant (Policy
Paragraph 4(b)(iv)) or by seeking to profit from a future sale of the domain
name to Complainant or one of its competitors (Paragraph 4(b)(i)). The Panel simply does not find credible
Respondent’s claim that he intends to use the disputed domain name for a bona fide car rental business in
Closing
Issue
Following the Panel's submission of its
Decision to the Forum, but within the time constraints set forth by the Forum's
Supplemental Rule 7, an Additional Submission was received from Respondent, in
response to Complainant's Additional Submission. For the reasons set
forth in the Decision, and because the Panel has not considered Complainant's
Additional Submission, the Panel does not consider Respondent's Additional
Submission either.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarrentals.com> domain
name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 12, 2007
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