Enterprise Rent-A-Car Company v. MM c/o M. Morgan
Claim Number: FA0707001045318
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki
L. Little, of Schultz & Little, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprize.tv>, registered with Enom, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 30, 2007.
On July 26, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprize.tv> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 August 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 21, 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@enterprize.tv by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 27, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
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:
1. Respondent’s
<enterprize.tv> domain name
is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprize.tv> domain name.
3. Respondent registered and used the <enterprize.tv> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Co., is a well-known
leader in the rental car business.
Complainant conducts business under the
Respondent registered the <enterprize.tv> domain name on November 21, 2006. Respondent’s disputed domain name resolves to a website featuring links to third-party websites, some of which are in direct competition with Complainant’s rental car business.
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 the 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:
(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.
The Panel finds that Complainant’s registration of the
Complainant alleges that Respondent’s <enterprize.tv> domain name is confusingly similar to
Complainant’s
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), the initial burden of proving that Respondent lacks rights and legitimate interests in the <enterprize.tv> domain name lies with Complainant. However, once a prima facie case has been established, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the present case, the Panel finds that Complainant has made a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint allows the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on the domain name.”). However, the Panel will still examine all the evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
There is no evidence in the record to suggest, and
Respondent’s WHOIS information does not indicate, that Respondent is commonly
known by the <enterprize.tv> domain
name. Moreover, Complainant has not
authorized or licensed Respondent to use the
Respondent’s lack of rights and legitimate interests in the <enterprize.tv> domain name is
further evidenced by the nature of the website that resolves from the disputed
domain name. Respondent’s website
features links to various third-party websites, some of which are in direct
competition with Complainant, and the Panel presumes that Respondent receives
click-through fees from these links.
Such use does not constitute a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).”); see also Coryn Group, Inc. v. Media Insight,
FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not
using the domain names for a bona fide offering of goods or services nor
a legitimate noncommercial or fair use because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
As mentioned previously, Respondent is using the <enterprize.tv> domain name to redirect Internet users to a website featuring third-party links, some of which are in direct competition with Complainant. Such use is evidence of Respondent’s bad faith registration and use of the disputed domain name because it constitutes a disruption of Complainant’s business under Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
Furthermore, the Panel presumes that Respondent benefits commercially when Internet users click on the links displayed on the website that resolves from the <enterprize.tv> domain name. Respondent is thus capitalizing on the likelihood that users will be confused as to Complainant’s affiliation with the disputed domain name. This is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprize.tv> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 10, 2007
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