national arbitration forum

 

DECISION

 

Enterprise Rent-A-Car Company v. Wan-Fu China Ltd.

Claim Number: FA0712001122715

 

PARTIES

Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Elizabeth K. Brock, of Harness, Dickey & Pierce PLC, 5445 Corporate Drive, Suite 200, Troy, MI 48098.  Respondent is Wan-Fu China, Ltd. (“Respondent”), P.O. Box Cb-11901, Nassau, Bahama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <enetrpriserentacar.com>, registered with Capitoldomains, LLC.

 

PANEL

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.

 

Judge Harold Kalina (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on December 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 20, 2007.

 

On December 20, 2007, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <enetrpriserentacar.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name.  Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, 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 December 28, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 17, 2008 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@enetrpriserentacar.com by e-mail.

 

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

 

On January 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <enetrpriserentacar.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 <enetrpriserentacar.com> domain name.

 

3.      Respondent registered and used the <enetrpriserentacar.com> domain name in bad faith.

 

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

 

FINDINGS

Complainant owns a registration of the ENTERPRISE RENT-A-CAR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,371,192 issued July 25, 2000).  The mark is used in connection with vehicle rental, leasing and reservation services.  Complainant currently owns the <enterpriserentacar.com> domain name, which resolves to Complainant’s homepage at the <enterprise.com> domain name. 

 

Respondent’s <enetrpriserentacar.com> domain name was registered on November 1, 2007.  It resolves to a website offering links to third-parties, many of whom offer services in direct competition with those offered under Complainant’s mark. 

 

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 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 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 <enetrpriserentacar.com> domain name would be identical to Complainant’s mark but for the transposition of the letters “e” and “t” 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 <enetrpriserentacar.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 Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”).

 

The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). 

 

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant must establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.  The Panel finds that Complainant has established a prima facie case and that the burden is thus shifted to Respondent to show that it does have rights or legitimate interests in the disputed domain name.  See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (“Respondent's default, however, does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name.”); see also 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”).

 

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 Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).

 

Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the <enetrpriserentacar.com> domain name.  Additionally, Respondent has never been authorized or licensed to use or exploit Complainant’s mark in any way.  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 <enetrpriserentacar.com> domain name resolves to a website offering 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). 

 

Registration and Use in Bad Faith

 

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 Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).

 

Additionally, the <enetrpriserentacar.com> domain name redirects to a webpage that 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 July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).

 

Finally, the <enetrpriserentacar.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.”  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). 

 

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 <enetrpriserentacar.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Judge Harold Kalina (Ret.), Panelist

Dated:  January 25, 2008

 

 

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