national arbitration forum

 

DECISION

 

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

Claim Number: FA0802001152005

 

PARTIES

 

Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by David R. Haarz, of Harness, Dickey & Pierce, P.L.C., Virginia, USA.  Respondent is Domain Park Limited (“Respondent”), Germany.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <eenterprisecarrental.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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 18, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 19, 2008.

 

On February 19, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <eenterprisecarrental.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name.  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 February 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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@eenterprisecarrental.com by e-mail.

 

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

 

On March 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <eenterprisecarrental.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.

 

2.      Respondent does not have any rights or legitimate interests in the <eenterprisecarrental.com> domain name.

 

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

 

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

 

FINDINGS

 

Complainant, Enterprise Rent-A-Car Co., provides car rental services internationally.  Complainant registered its ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) on June 18, 1985 (Reg. No. 1,343,167).  Complainant uses its ENTERPRISE mark in order to market its car rental services and has registered it with multiple governmental authorities in addition to the USPTO.

 

Respondent’s disputed domain name was registered on August 31, 2007.  Respondent’s disputed domain name resolves to a website which provides links to the websites of Complainant’s competitors, for which Respondent presumably receives click-through fees. 

 

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 provided the Panel with evidence of the registration of its ENTERPRISE mark with the USPTO.  The Panel finds this is sufficient to conclude Complainant has established rights in the ENTERPRISE mark pursuant to Policy ¶ 4(a)(i).  See Expedia, Inc. v. Inertia 3D, FA 1118154 (Nat. Arb. Forum Jan. 18, 2008) (“Complainant asserts rights in the mark through its registration of the mark with the United States Patent and Trademark Office.  This registration sufficiently establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

 

Respondent’s <eenterprisecarrental.com> domain name fully incorporates Complainant’s mark with the addition of the letter “e” and the descriptive phrase “car rental.”  The mere addition of a letter and a descriptive phrase is not sufficient to distinguish the disputed domain name from Complainant’s mark.  See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent’s domain name <eebay.com> is confusingly similar to the complainant’s registered EBAY trademark); Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business).  In addition, the generic top-level domain (“gTLD”) “.com,” is not considered relevant when evaluating whether a disputed domain name is confusingly similar to a mark.  Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."). 

 

Therefore, the Panel finds Respondent’s <eenterprisecarrental.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark pursuant to Policy ¶ 4(a)(i). 

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

 

Rights or Legitimate Interests

 

Complainant has asserted Respondent does not have rights or legitimate interests in the disputed domain name.  Once Complainant presents a prima facie case supporting these assertions, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  The Panel finds Complainant has presented a sufficient prima facie case to support its assertions.  Respondent failed to submit a response to these proceedings.  Therefore, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  American 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.”).  However, the Panel will inspect the record and determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). 

 

Respondent’s disputed domain name resolves to a website which displays links to Complainant’s competitors which also operate car rental businesses.  The Panel finds Respondent’s use of the disputed domain name 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 pursuant to Policy ¶ 4(c)(iii).  See 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); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).

 

Respondent does not appear to be commonly known by the <eenterprisecarrental.com> domain name.  Nothing in the WHOIS information or record indicates Respondent is known by the disputed domain name.  Additionally, the record indicates Complainant has never authorized Respondent to use its ENTERPRISE mark.  Therefore, the Panel finds Respondent is not commonly known by the disputed domain name and thus has no rights or legitimate interests pursuant to Policy ¶ 4(c)(ii).  See 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); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).

 

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

 

Registration and Use in Bad Faith

 

Respondent’s <eenterprisecarrental.com> domain name resolves to a website which displays links to Complainant’s competitors who operate car rental businesses.  The Panel finds Respondent’s use constitutes disruption and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”); 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).”). 

 

Respondent presumably receives click-through fees for displaying links to Complainant’s competitors on the website resolving from the confusingly similar <eenterprisecarrental.com> domain name.  Thus, the Panel finds Respondent is attempting to profit from the goodwill associated with Complainant’s mark, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See 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)); see also 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.’”).

 

The Panel finds 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 <eenterprisecarrental.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Bruce E. Meyerson, Panelist

Dated: April 3, 2008

 

 

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