Enterprise Rent-A-Car Company v. Razvan Dima
Claim Number: FA0804001175542
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-car-locations.info>, registered with MyDomain, Inc.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 7, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 8, 2008.
On April 7, 2008, MyDomain, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprise-rent-car-locations.info> domain name is registered with MyDomain, Inc. and that Respondent is the current registrant of the name. MyDomain, Inc. has verified that Respondent is bound by the MyDomain, 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 April
8, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 28, 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@enterprise-rent-car-locations.info
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 2, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <enterprise-rent-car-locations.info> domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark.
2. Respondent does not have any rights or legitimate interests in the <enterprise-rent-car-locations.info> domain name.
3. Respondent registered and used the <enterprise-rent-car-locations.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is one of the largest vehicle rental companies in the world, with over 850,000 vehicles in its fleet. Complainant owns numerous registration marks with the United States Patent and Trademark Office (“USPTO”), including the ENTERPRISE RENT-A-CAR mark (Reg. No. 2,010,244 October 22, 1996).
Respondent, Razvan Dima, registered the <enterprise-rent-car-locations.info> domain name on January 21, 2008 and is currently using the disputed domain name for a web page that displays various links to the websites of Complainant’s own website and those of Complainant’s competitors.
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 alleges rights to the ENTERPRISE RENT-A-CAR mark
based on its USPTO trademark registration.
Under the Policy, registration of a mark with a pertinent government
authority, such as the USPTO, confers rights in that mark to a
complainant. For the purposes of Policy
¶ 4(a)(i) Complainant has established rights to the
ENTERPRISE RENT-A-CAR mark. See
Complainant alleges Respondent’s <enterprise-rent-car-locations.info> domain name is confusingly similar to its ENTERPRISE RENT-A-CAR mark. The disputed domain name contains Complainant’s mark, but deletes the “a,” replaces a space with a hyphen, and adds the generic term “locations” and the generic top-level domain (“gTLD”) “.info.” The Panel finds the addition of a gTLD irrelevant in distinguishing a disputed domain name from an established mark. Further, the Panel does not find the deletion of “a,” the replacement of a space with a hyphen, or the addition of the term “locations” negate the confusingly similar nature of the disputed domain name from Complainant’s mark. Therefore, the Panel concludes Respondent’s <enterprise-rent-car-locations.info> domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark pursuant to Policy ¶ 4(a)(i). See 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); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights or
legitimate interests in the <enterprise-rent-car-locations.info>
domain name. Once Complainant makes
a prima facie case supporting its
allegations, Respondent has the burden of proving it does have rights or
legitimate interests under Policy ¶ 4(a)(ii). Based on the allegations in the Complaint,
the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). The Panel may assume Respondent’s failure to
respond is evidence of Respondent’s lack of rights and legitimate
interests. However, the Panel will
examine the record to determine if such rights or interests are present
pursuant to Policy ¶ 4(c). See G.D.
Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because
Complainant’s Submission constitutes a prima
facie case under the Policy, the burden effectively shifts to Respondent.
Respondent’s failure to respond means that Respondent has not presented any
circumstances that would promote its rights or legitimate interests in the
subject domain name under Policy ¶ 4(a)(ii).”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Complainant alleges Respondent is not commonly known by the <enterprise-rent-car-locations.info> domain name. The WHOIS information identifies Respondent as “Razvan Dima” and Respondent provides no other information suggesting Respondent might be commonly known by the disputed domain name. The Panel may assume that Respondent’s failure to respond to the Complaint is evidence Respondent is not commonly known by the disputed domain name. Pursuant to Policy ¶ 4(c)(ii), the Panel concludes Respondent lacks rights and legitimate interests in the <enterprise-rent-car-locations.info> domain name. See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant alleges Respondent does not have rights or legitimate interests to the <enterprise-rent-car-locations.info> domain name because Respondent’s registration and use of the disputed domain name is not in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. The disputed domain name resolves to a web page featuring links to Complainant’s own website and websites of Complainant’s competitors. Respondent presumably earns click-through fees for each redirected Internet user. The Panel finds this registration and use is not in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); 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 name to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <enterprise-rent-car-locations.info> domain name displays links to Complainant’s competitors. This use constitutes a disruption of Complainant’s business. The Panel finds the registration and use of Respondent’s <enterprise-rent-car-locations.info> domain name to be in bad faith pursuant to Policy ¶ 4(b)(iii). See Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name primarily to disrupt its competitor when it sold similar goods as those offered by the complainant and “even included Complainant's personal name on the website, leaving Internet users with the assumption that it was Complainant's business they were doing business with”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
Complainant alleges Respondent registered and is using the <enterprise-rent-car-locations.info> domain
name in bad faith because Respondent is financially profiting off the goodwill
associated with Complainant’s mark. Complainant
further alleges that because Respondent is using Complainant’s mark in the
disputed domain name, Respondent is creating a likelihood of confusion as to
the sponsorship, affiliation, and endorsement of the disputed domain name. The Panel agrees and concludes Respondent’s
use and registration of the <enterprise-rent-car-locations.info>
domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See State Fair of
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 <enterprise-rent-car-locations.info> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Date: May 15, 2008
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