Enterprise Rent-A-Car Company v. The Cybertrade c/o Mr. Irfan Umer
Claim Number: FA0803001172986
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by David
R. Haarz, of Harness, Dickey & Pierce, P.L.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterpriseluxurycars.com>, registered with Quantumpages Technologies Pvt. Ltd. d/b/a Ownregistrar.com.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 31, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 1, 2008.
On March 31, 2008, Quantumpages Technologies Pvt. Ltd. Dba Ownregistrar.com confirmed by e-mail to the National Arbitration Forum that the <enterpriseluxurycars.com> domain name is registered with Quantumpages Technologies Pvt. Ltd. d/b/a Ownregistrar.com and that Respondent is the current registrant of the name. Quantumpages Technologies Pvt. Ltd. d/b/a Ownregistrar.com has verified that Respondent is bound by the Quantumpages Technologies Pvt. Ltd. d/b/a Ownregistrar.com 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 April
3, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of April
23, 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@enterpriseluxurycars.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 7, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<enterpriseluxurycars.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterpriseluxurycars.com> domain name.
3. Respondent registered and used the <enterpriseluxurycars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise
Rent-A-Car Company, is in the business of car rentals. Complainant uses the
Respondent’s <enterpriseluxurycars.com> domain name, which was registered on February 21, 2007, resolves to a parked page displaying hyperlinks, some of which are in direct competition with Complainant.
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 has established sufficient
rights in the
The Panel finds that Respondent’s <enterpriseluxurycars.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark under Policy ¶ 4(a)(i) as it contains Complainant’s entire mark and adds the generic phrase “luxury cars,” which has an apparent relationship to Complainant’s business of car rentals. When evaluating if the disputed domain name is confusingly similar, the addition of a generic top-level domain “.com” is irrelevant. Therefore, Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Initially Complainant must establish that Respondent lacks
rights and legitimate interests with respect to the <enterpriseluxurycars.com> domain name. However, once Complainant makes a prima facie case, the burden of proof shifts,
and Respondent must prove that it has rights or legitimate interests in the
disputed domain name. The Panel finds
that Complainant has met its burden of proof, but chooses to examine all of the
evidence before making a final determination with respect 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 G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
The Panel finds that Respondent is using the <enterpriseluxurycars.com> domain
name to display hyperlinks to a parked page with a list of third-party
websites, some of which are Complainant’s competitors. The Panel infers that Respondent is earning
click-through fees from the use of the dispute domain name, which is not 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 TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002)
(finding that the respondent’s diversionary use of the complainant’s marks to
send Internet users to a website which displayed a series of links, some of
which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Wells Fargo & Co. v. Lin
Shun Shing, FA 205699 (Nat. Arb. Forum
Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a
website featuring pop-up advertisements and links to various third-party
websites is neither a bona fide offering of goods or services under
Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives
compensation for each misdirected Internet user).
The Panel also finds that Respondent is not commonly known
by the <enterpriseluxurycars.com>
domain name based on its WHOIS information and the fact that there is no other
information in the record to suggest otherwise under Policy ¶ 4(c)(ii). Additionally,
Complainant asserts that Respondent is not affiliated with Complainant nor
licensed or authorized to use Complainant’s
The Panel finds that Policy ¶ 4(a)(ii)
has been met.
Based on the uncontested evidence presented by Complainant,
the Panel finds that Respondent receives click-through fees for the hyperlinks
displayed on the website that resolves from the <enterpriseluxurycars.com> domain name. The Panel also finds that Respondent’s
disputed domain name is capable of creating a likelihood of confusion as to
Complainant’s sponsorship and affiliation with the disputed domain name and
corresponding website. Such commercial
benefit constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that
incorporates another's mark with the intent to deceive Internet users in regard
to the source or affiliation of the domain name is evidence of bad faith.”); 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.’”).
Furthermore, the Panel finds that
Respondent is using the <enterpriseluxurycars.com>
domain name to redirect Internet users to a website
that contains third-party hyperlinks, some of which are in direct competition
with Complainant. Such use constitutes a
disruption of Complainant’s business and qualifies as bad faith registration
and use under Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <enterpriseluxurycars.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: May 13, 2008
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