Enterprise Rent-A-Car Company v. Domain Admin Ltd c/o David Halstead
Claim Number: FA0801001126287
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki
L. Little, of Devereux Murphy LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprizerent.com>, registered with Parava Networks Inc. d/b/a Registrateya.Com Naame.com.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 4, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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:
name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprizerent.com> domain name.
3. Respondent registered and used the <enterprizerent.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, has used the
Respondent registered the <enterprizerent.com>
domain name 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.
The Panel finds that Complainant’s registration of the
domain name differs from Complainant’s mark by three factors: (1) replacement
of the “s” with “z;” (2) addition of the generic term “rent;” and (3) addition
of the generic top-level domain (“gTLD”) “.com.” First, panels have previously concluded that
substitution of one letter in Complainant’s mark does not distinguish the
disputed domain name for the purposes of determining whether the disputed
domain name is confusingly similar to the mark, especially when the term
remains phonetically similar. Second,
the generic term “rent” describes Complainant’s car rental business and
therefore does not sufficiently distinguish the disputed domain name from the
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserted that Respondent lacks rights and
legitimate interests in the <enterprizerent.com>
domain name. Under a Policy ¶ 4(a)(ii) analysis, Complainant must first make a prima facie case, and then the burden
shifts to Respondent to demonstrate that it does have rights and legitimate
interests in the disputed domain name.
The Panel finds that Complainant has made a prima facie case pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Respondent’s failure to provide any defense to Complainant’s assertion allows the Panel to presume that Respondent lacks all rights and legitimate interests in the <enterprizerent.com> domain name. See 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.”); see also CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant).
The Panel will consider all evidence in the record, however, to determine if Respondent has any rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Respondent is using the disputed domain name to host a
website where general search topics, including cars, dating, and finance, among
others, are listed. These general search
topics are both unrelated and competing with Complainant’s car rental
services. In Wells Fargo &
Complainant contends that it has never authorized Respondent
to use the
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has previously been the respondent in several other UDRP claims. See Am. Chartered Bankcorp Inc. v. Domain Admin. Ltd., FA 1088009 (Nat. Arb. Forum Nov. 22, 2007) (ordering transfer of the <americancharteredbank.com> domain name to the complainant); see also Elders Ltd. v. Domain Admin. Ltd., D2007-1026 (WIPO Sept. 13, 2007) (ordering transfer of the <eldersrealestate.com> domain name to the complainant). In these claims, Respondent has been ordered to transfer the disputed domain name to the legitimate owners of the trademark. The Panel concludes that this pattern of behavior evidences Respondent’s registration of domain names to prevent the owner of the mark from reflecting the mark in the domain name pursuant to Policy ¶ 4(b)(ii). See Nat’l Wildlife Fed’n v. Kang, FA 170519 (Nat. Arb. Forum Sept. 9, 2003) (“Respondent has a history of registering domain names that infringe on other trademark holders' rights; therefore, Respondent's registration and use of the <yourbigbackyard.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name is identical to Complainant's YOUR BIG BACKYARD mark and prevents Complainant from reflecting its mark on-line.”); 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”).
Moreover, Complainant asserts that Respondent is commercially benefiting by hosting a website that lists general search topics, and thus benefiting when Internet users click on a category. Complainant also contends that because of the confusing similarity between Complainant’s mark and the disputed domain name, the <enterprizerent.com> domain name is capable of creating confusion as to the source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain name. The Panel finds that Respondent’s use is evidence of registration and use in bad faith under 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)).
Finally, by listing links to car-related websites, the Panel also finds evidence of registration and use in bad faith for the purpose of disrupting Complainant’s business, pursuant to Policy ¶ 4(b)(iii). See 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).”); see also 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).
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 <enterprizerent.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 25, 2008
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