national arbitration forum

DECISION

Enterprise Rent-a-Car Company v. Domain Park Limited

Claim Number: FA0711001108660

PARTIES

Complainant is Enterprise Rent-a-Car Company (“Complainant”), represented by David R. Haarz, of Harness Dickey & Pierce PLC, 11730 Plaza America Dr., Suite 600, Reston, VA 20190. Respondent is Domain Park Limited (“Respondent”), Vaea Street, Level 2 Lotemau Centre, Apia Samoa.

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com>, registered with Moniker Online Services, Inc.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 12, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 13, 2007.

On November 13, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names are registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 November 20, 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@enterprisecarremtal.com, postmaster@enterpriserentalcarl.com and postmaster@enterpriserentacart.com by e-mail.

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

On December 16, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant makes the following assertions:

1. Respondent’s <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names are confusingly similar to Complainant’s ENTERPRISE and ENTERPRISE RENT-A-CAR marks.

2. Respondent does not have any rights or legitimate interests in the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names.

3. Respondent registered and used the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Enterprise Rent-A-Car Company, is a company that provides auto rental business under the ENTERPRISE and ENTERPRISE RENT-A-CAR marks. Complainant registered the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) on June 19, 1985 (Reg. No. 1,343,167). Additionally, Complainant registered the ENTERPRISE RENT-A-CAR mark with USPTO on July 25, 2000 (Reg. No. 2,371,192).

Respondent registered the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names on April 8, 2007, July 31, 2007 and September 3, 2007 respectively. Respondent is using the disputed domain names as commercial websites that contain advertisements and links for products and services in direct competition with Complainant. Additionally, Respondent has been the respondent in several previous UDRP decisions in which the disputed domain names in those cases were transferred from Respondent to the respective complainants in those cases. See Hubbel Inc. v. Domain Park Ltd., FA 846861 (Nat. Arb. Forum Jan. 3, 2007); see also Citizens Fin. Group, Inc. v. Domain Park Ltd., FA 975307 (Nat. Arb. Forum June 7, 2007).

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."

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.

Identical and/or Confusingly Similar

Complainant has established rights in the ENTERPRISE and ENTERPRISE RENT-A-CAR marks pursuant to Policy ¶ 4(a)(i) through registration of the marks with USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”)

Respondent’s <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names are confusingly similar to Complainant’s ENTERPRISE and ENTERPRISE RENT-A-CAR marks pursuant to Policy ¶ 4(a)(i) because Respondent’s domain names use Complainant’s marks in conjunction with typos of generic descriptors of Complainant’s business. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark). The Panel also finds that the addition of the generic top-level domain (“gTLD”) “.com” is irrelevant under the Policy ¶ 4(a)(i) since all domain names require a top-level domain. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”)

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Complainant has alleged that Respondent does not have rights or legitimate interest in the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names. 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 interest under Policy ¶ 4(c).

Respondent is using the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names to resolve to websites that contain links and advertisements for goods and services in direct competition with Complainant’s. Respondent’s use of domain names that are confusingly similar to Complainant’s mark to direct users interested in Complainant’s products to a website that offers competing 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 TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); 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 evidence in the record and WHOIS information indicates no evidence suggesting Respondent is commonly known by the <enterprisecarremtal.com>, <enterpriserentalcarl.com> or <enterpriserentacart.com> domain names. Thus, Respondent has not established rights or legitimate interests in the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names 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).

Also, Complainant has alleged that Respondent’s use of the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names constitutes “typosquatting” because the disputed domain names contain misspelled versions of Complainant’s marks. Respondent is attempting to benefit from common typographical errors made by Internet users. This is evidence that Respondent does not have rights or legitimate interests in the disputed domain names 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 finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is typosquatting by using the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names to take advantage of common typing errors by Internet users attempting to locate Complainant’s website. The Panel finds that such use constitutes 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 Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”).

In addition, Respondent registered and is using the <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent is using Complainant’s marks to attract Internet users to a website that has links and advertising for competing goods and services. This conduct is evidence that the Respondent is attempting to profit by use of a confusingly similar domain name. See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”); see also Toyota Motor Sales U.S.A. Inc. v. Clelland, FA 198018 (Nat. Arb. Forum Nov. 10, 2003) (“Respondent used <land-cruiser.com> to advertise its business, which sold goods in competition with Complainant. This establishes bad faith as defined in Policy ¶ 4(b)(iv).”).

Also, Respondent has a pattern of bad faith registration and use of domain names. See Hubbel Inc. v. Domain Park Ltd., FA 846861 (Nat. Arb. Forum Jan. 3, 2007); see also Citizens Fin. Group, Inc. v. Domain Park Ltd., FA 975307 (Nat. Arb. Forum June 7, 2007). The registration of multiple domain names using the Complainant’s marks, as well these previous UDRP decisions, is evidence of bad faith pursuant to Policy ¶ 4(b)(ii). See Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting); see also Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005) (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another UDRP proceeding against the respondent to find that “this is part of a pattern of such registrations”).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

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 <enterprisecarremtal.com>, <enterpriserentalcarl.com> and <enterpriserentacart.com> domain names be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated: December 27, 2007

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