Enterprise Rent-a-Car Company v. Nutthadej Chandumrongdej
Claim Number: FA0711001106691
Complainant is Enterprise Rent-a-Car Company (“Complainant”), represented by David
R. Haarz, of Harness Dickey & Pierce PLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterpriserentalcar.info>, registered with Domain Discover.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 7, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 8, 2007.
On November 7, 2007, Domain Discover confirmed by e-mail to the National Arbitration Forum that the <enterpriserentalcar.info> domain name is registered with Domain Discover and that Respondent is the current registrant of the name. Domain Discover has verified that Respondent is bound by the Domain Discover 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 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 10, 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@enterpriserentalcar.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 18, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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
<enterpriserentalcar.info>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterpriserentalcar.info> domain name.
3. Respondent registered and used the <enterpriserentalcar.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a company
that provides auto rental business under the
Respondent registered the <enterpriserentalcar.info> domain name on April 12, 2007. Respondent is using the disputed domain name as a commercial website that contains advertisements and links for products unrelated to Complainant’s.
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 established rights in the
Respondent’s <enterpriserentalcar.info>
domain name is confusingly similar to Complainant’s ENTERPRISE mark
pursuant to Policy ¶ 4(a)(i) because Respondent’s domain name incorporates the
ENTERPRISE mark with a generic term describing the goods or services offered
under the mark. See Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i) has been satisfied
Complainant has alleged that Respondent does not have rights or legitimate interests in the <enterpriserentalcar.info> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also 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”). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <enterpriserentalcar.info>
domain name to resolve to a website that contains links and advertisements for
goods and services unrelated to those offered by Complainant. Respondent’s use of a domain name that is
confusingly similar to Complainant’s mark to direct users interested in
Complainant’s products to a website that offers unrelated goods and services is
not a use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use of the domain name pursuant to Policy ¶
4(c)(iii). See Disney Enters., Inc. v.
Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that
the respondent’s diversionary use of the complainant’s mark to attract Internet
users to its own website, which contained a series of hyperlinks to unrelated
websites, was neither a bona fide offering of goods or services nor a
legitimate noncommercial or fair use of the disputed domain names); see also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb.
Forum June 12, 2003) (finding that the respondent’s use
of the disputed domain name to redirect Internet users to websites unrelated to
the complainant’s mark, websites where the respondent presumably receives a
referral fee for each misdirected Internet user, was not a bona fide
offering of goods or services as contemplated by the Policy); see also
Am. Online, Inc. v. Advanced Membership Servs.,
Inc., FA 180703 (Nat. Arb. Forum Sept. 26,
2003) (“Respondent's registration and use of the <gayaol.com> domain name
with the intent to divert Internet users to Respondent's website suggests that
Respondent has no rights to or legitimate interests in the disputed domain name
pursuant to Policy Paragraph 4(a)(ii).”).
Additionally, the record and WHOIS information indicates no
evidence suggesting Respondent is commonly known by the <enterpriserentalcar.info> domain name, or that Complainant
has authorized Respondent to use its mark.
Thus, Respondent has not established rights or legitimate interests in
the <enterpriserentalcar.info>
domain name pursuant to Policy ¶ 4(c)(ii).
See Gallup, Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
is using the <enterpriserentalcar.info>
domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because Respondent is using Complainant’s
ENTERPRISE mark to attract Internet users to a website that advertises for
goods and services unrelated to Complainant’s, for which Respondent presumably
receives fees. This conduct is evidence
that the Respondent is attempting to profit by attracting Internet users
looking for Complainant’s website to Respondent’s commercial website which
offers unrelated goods and services. See Bank of Am. Corp. v.
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 <enterpriserentalcar.info> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 31, 2007
National
Arbitration Forum
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