Enterprise Rent-A-Car Company v. James D'Souza
Claim Number: FA0707001045134
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.
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 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 firstname.lastname@example.org 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.
Complainant requests that the domain name be transferred from Respondent to 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.
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.
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.
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
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.
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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