Enterprise Rent-A-Car Company v. Domain Drop S.A.
Claim Number: FA0711001106488
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Bryce J. Maynard, of Buchanan Ingersoll & Rooney PC, 1737 King Street, Suite 500, Alexandria, VA 22314. Respondent is Domain Drop S.A. (“Respondent”), P.O. Box 556, Main Street, Charlestown KN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterepriserentacar.com>, registered with Domaindoorman, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On November 6, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <enterepriserentacar.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 November 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 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@enterepriserentacar.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <enterepriserentacar.com> domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark.
2. Respondent does not have any rights or legitimate interests in the <enterepriserentacar.com> domain name.
3. Respondent registered and used the <enterepriserentacar.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns registration of the ENTERPRISE RENT-A-CAR
mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No.
2,371,192 issued
Respondent’s <enterepriserentacar.com> domain
name was registered on
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.
Complainant has sufficiently established its rights in the
ENTERPRISE RENT-A-CAR mark through registration with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <enterepriserentacar.com> domain
name would be identical to Complainant’s mark but for the inclusion of an extra
“e” within the word “enterprise.” The
disputed domain name also omits the hyphens in Complainant’s mark and includes
the generic top-level domain (“gTLD”) “.com.”
It is well-established that the omission of hyphens and the inclusion of
a gTLD are irrelevant to a Policy ¶ 4(a)(i)
analysis. Moreover, a simple misspelling
does not distinguish a disputed domain name.
Therefore, the Panel finds that the <enterepriserentacar.com>
domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark
pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA
221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level
domains are irrelevant for purposes of the Policy); see also Reuters Ltd. v.
Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that
a domain name which differs by only one letter from a trademark has a greater
tendency to be confusingly similar to the trademark where the trademark is
highly distinctive); see also Am.
Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. See VeriSign Inc. v. VeneSign
Respondent has failed to reply to the Complaint. Consequently, the Panel presumes that
Respondent has no rights or legitimate interests in the disputed domain name,
but will nonetheless consider all the evidence in the record in consideration
of the factors listed under Policy ¶ 4(c).
See Am. Express Co. v. Fang
Suhendro, FA 129120 (Nat. Arb. Forum
Nowhere in Respondent’s WHOIS information or elsewhere in
the record does it indicate that Respondent is or ever was commonly known by
the <enterepriserentacar.com> domain name. Additionally, Complainant has never authorized
or licensed Respondent to use or exploit Complainant’s mark in any way. Absent any evidence to the contrary, the
Panel finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also Compagnie de
Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding
no rights or legitimate interest where the respondent was not commonly known by
the mark and never applied for a license or permission from the complainant to
use the trademarked name).
The <enterepriserentacar.com>
domain name resolves to a website offering vehicle rental services and links to
third-parties, many of whom offer services in direct competition with those
offered under Complainant’s mark. The
Panel finds this to be neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to
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 Ameritrade
Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002)
(finding that the respondent’s use of the disputed domain name to redirect
Internet users to a financial services website, which competed with the complainant,
was not a bona fide offering of goods or services).
Respondent’s disputed domain name is a simple misspelling of Complainant’s mark and as such that Respondent is engaging in typosquatting. Consequently, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); see also Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of the complainant's mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds
that the disputed domain name is a simple misspelling of Complainant’s mark and
as such that Respondent is engaging in typosquatting. The Panel finds that this serves to establish
Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO
Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with
[the] intent to intercept and siphon off traffic from its intended destination,
by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of
itself evidence of bad faith.”); see also
Zone Labs, Inc.
v. Zuccarini, FA 190613 (Nat. Arb.
Forum
Additionally, the <enterepriserentacar.com>
domain name offers services and displays links to third-parties who offer
services in direct competition with those offered under Complainant’s
mark. The Panel finds this to be further
evidence of Respondent’s bad faith registration and use pursuant to Policy ¶
4(b)(iii). See S. Exposure
v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
Finally, the <enterepriserentacar.com> domain
name contains hyperlinks to various third-parties and the Panel presumes that
Respondent is commercially benefiting from such links through “click-through
fees.” Therefore, the Panel finds this
to be additional evidence that Respondent registered and is using the disputed
domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably commercially
benefited from the misleading domain name by receiving ‘click-through-fees.’”);
see also Kmart v. Khan,
FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent
profits from its diversionary use of the complainant's mark when the domain
name resolves to commercial websites and the respondent fails to contest the
complaint, it may be concluded that the respondent is using the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that 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 <enterepriserentacar.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 1, 2008
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