Enterprise Rent-A-Car Company v. Keyword Marketing, Inc.
Claim Number: FA0802001152378
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Bryce
J. Maynard, of Buchanan Ingersoll & Rooney PC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisercar.com>, registered with Belgiumdomains, LLC.
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 March 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 24, 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 <enterprisercar.com> domain name.
3. Respondent registered and used the <enterprisercar.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-a-Car Co., is engaged in
renting vehicles to consumers.
Complainant uses its
Respondent registered the <enterprisercar.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.
Complainant registered its
domain name fully incorporates Complainant’s mark with the addition of the
letter “r” and the descriptive term “car.”
The mere additions of a letter and a descriptive term are not sufficient
to distinguish the disputed domain name from Complainant’s mark. In addition, the addition of a generic
top-level domain (“gTLD”) such as “.com,” is not legally relevant when
evaluating whether a disputed domain name is confusingly similar to a
Complainant’s mark. Therefore, the Panel
finds Respondent’s <enterprisercar.com>
domain name is confusingly similar to Complainant’s
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 G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Respondent’s <enterprisercar.com> domain name resolves to a website which displays links to vehicle rental goods and services which compete with Complainant’s business. Respondent’s use of the disputed domain name diverts Internet users looking for Complainant’s car rental services to competing 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 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 Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
Respondent does not appear to be commonly known by the <enterprisercar.com> domain name. The WHOIS information lists Respondent as “Keyword
Marketing, Inc.” Also, the record does
not indicate Respondent has ever been authorized to use Complainant’s
Thus, the Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
which displays links to the third-party websites of vehicle rental companies
that compete with Complainant. The Panel
finds such 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
Respondent presumably receives compensation in the form of
click-through fees for displaying links to Complainant’s competitors on its
confusingly similar disputed domain name.
The Panel finds Respondent is attempting to profit from the goodwill
Complainant has acquired in its
The Panel finds Policy ¶ 4(a)(i) 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 <enterprisercar.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 8, 2008
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