Enterprise Rent-A-Car Company v. Lugohe Dukale
Claim Number: FA0802001152186
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 <enterprise-rent.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 27, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 18, 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:
1. Respondent’s <enterprise-rent.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterprise-rent.com> domain name.
3. Respondent registered and used the <enterprise-rent.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Rent-A-Car Company, is a rental car company.
Complainant first registered its
Respondent’s <enterprise-rent.com> domain name resolves to a website which begins, “Louis Enterprise Rent was indeed fortunate in having the great Colbert for one of his ministers.” The website goes on to tell a nonsensical story and provides a listing of links to various goods and services unrelated to Complainant’s business. Respondent presumably receives compensation for displaying these links to goods and services through click-through fees.
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 provided the Panel with evidence of the
registration of its
Respondent’s <enterprise-rent.com> domain name fully incorporates Complainant’s mark with the addition of a hyphen and the descriptive term “rent.” The mere addition of a hyphen and a descriptive term is not sufficient to distinguish the disputed domain name from Complainant’s mark. 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. Therefore, the Panel finds Respondent’s <enterprise-rent.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark pursuant to Policy ¶ 4(a)(i). See Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also 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); see also 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 . . . .").
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant presents a prima facie case supporting these allegations, 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 allegations. Respondent failed to submit a response to these proceedings. Therefore, the Panel assumes Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). 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). See 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”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent’s <enterprise-rent.com> domain name resolves to a website which contains a nonsensical story and displays links to goods and services unrelated to Complainant’s business. Respondent’s use of the disputed domain name diverts Internet users looking for Complainant’s car rental services to unrelated goods and services. The Panel finds Respondent’s diversionary use 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 Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
In addition, Respondent does not appear to be commonly known
by the <enterprise-rent.com>
domain name. The WHOIS information lists
Respondent as “Lugohe Dukale.” Also, the
record does not indicate Respondent has ever been authorized to use
Thus, the Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s confusingly similar <enterprise-rent.com> domain name resolves to a website
which displays a nonsensical story and displays links to goods and services
that are unrelated to Complainant’s business, for which Respondent presumably
receives click-through fees. This use of
Complainant’s mark in Respondent’s disputed domain name creates a likelihood of
confusion among Internet users as to the source, sponsorship, affiliation or
endorsement of the content of the website resolving from Respondent’s disputed
domain name. Thus, Respondent is
attempting to profit from its use of the confusingly similar disputed domain
name. The Panel finds this conduct
constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
Thus, the Panel finds 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 <enterprise-rent.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 4, 2008
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