Enterprise Rent-A-Car Company v. David Bedford
Claim Number: FA0804001176573
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by David
R. Haarz, of Harness, Dickey & Pierce, P.L.C.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <enterprisecar.biz > and <enterprisecar.org>, registered with Moniker Online Services 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.
Louis E. Condon 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 8, 2008, Moniker Online Services Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecar.biz > and <enterprisecar.org> domain names are registered with Moniker Online Services Inc. and that Respondent is the current registrant of the names. 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 April
11, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 1, 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@enterprisecar.biz and postmaster@enterprisecar.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<enterprisecar.biz > and <enterprisecar.org>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecar.biz > and <enterprisecar.org> domain name.
3. Respondent registered and used the <enterprisecar.biz > and <enterprisecar.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a world-wide
leader in providing rental car services.
Complainant owns several trademark registrations with the United States
Patent and Trademark Office (“USPTO”) for the
Respondent registered the disputed domain names 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.
Registration with the USPTO establishes rights in Complainant’s ICQ mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); 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.”).
Complainant alleges that Respondent’s disputed domain names
are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). Respondent’s
disputed domain names contain Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case Complainant has established a prima facie case. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Due to the failure of Respondent to respond to the Complaint, the Panel may assume that Respondent lacks rights and legitimate interests in the disputed domain names. See 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); see also Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on the domain name.”). However, the Panel chooses to examine the evidence against the applicable Policy ¶ 4(c) elements before making a final determination about Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by the disputed
domain names, nor licensed to register domain names using the
Complainant asserts that Respondent is using the disputed domain names in order to attract unknowing Internet users to the associated website containing links to third-party websites, some of which are in competition with Complainant. In instances such as this, the Panel assumes that click-through-fees are received by Respondent. The Panel finds such diversion of Internet users to both competitive and non-competitive content is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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 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).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the disputed domain names in order to intentionally attract
Internet users to its website and offering third-party links to competing and
non-competing websites is evidence of bad faith registration and use. The Panel infers that Respondent receives
click-through fees for diverting Internet users to such websites. Therefore, pursuant to Policy ¶ 4(b)(iv), the
Panel finds such use of the disputed domain name constitutes bad faith
registration and use. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb.
Forum Nov. 21, 2002) (finding that the respondent registered and used the
domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent
was using the confusingly similar domain name to attract Internet users to its
commercial website); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent
is using the domain name at issue in direct competition with Complainant, and
giving the impression of being affiliated with or sponsored by Complainant,
this circumstance qualifies as bad faith registration and use of the domain
name pursuant to Policy ¶ 4(b)(iv).”).
In addition, Respondent’s use of
the disputed domain names to compete with Complainant is further evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). The Panel finds that such competing actions
are targeted to disrupt the business of Complainant and constitutes bad faith
registration and use 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 Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
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 <enterprisecar.biz > and <enterprisecar.org> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: May 21, 2008
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