Enterprise Rent-A-Car Company v. indexoflebanon c/o Shadi Barakat
Claim Number: FA0805001186652
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 <enterprisecarrentals.org>, registered with Name.com LLC.
The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 5, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 8, 2008.
On May 6, 2008, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentals.org> domain name is registered with Name.com LLC and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC 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 May 9, 2008, a Notification of
Complaint and Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of May 29, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 4, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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:
<enterprisecarrentals.org> domain name is confusingly similar to
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrentals.org> domain name.
3. Respondent registered and used the <enterprisecarrentals.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a car rental
company that, since 1969, as done business under the
Respondent registered the <enterprisecarrentals.org> domain name on March 28, 2008, and is using the disputed domain name to resolve to a website that features third-party advertisements and links to Complainant’s car rental competitors. One of the links is listed as Complainant, however it leads to the <travel.yahoo.com> domain name and corresponding website, which is unaffiliated 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.
Complainant has asserted its rights in the
domain name utilizes Complainant’s full
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted in its Complaint that Respondent lacks rights and legitimate interests in the <enterprisecarrentals.org> domain name. Because Respondent has therefore set forth a sufficient prima facie case supporting its allegations, Respondent now bears the yoke of demonstrating its rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). 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 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).”).
Complainant has achieved worldwide recognition and
awareness, and the evidence suggests that its
Respondent’s <enterprisecarrentals.org> domain
name redirects Internet users to a website that displays third-party links and
advertisements, many of which lead to Complainant’s direct car rental competitors. There is no other extant feature on the
corresponding website, and thus the sole use of the disputed domain name is
tied up in the placement of these advertisements. Respondent most probably obtains commercial
benefit from these advertisements through the common receipt of referral fees,
paid by or on behalf of the advertisers for each and every Internet user that
clicks on the links displayed. Because
of the presumed commercial use of the disputed domain name, the Panel finds
that Respondent has not engaged in a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii). Moreover, because
Respondent does not offer any independent, distinct, or reasonably genuine
products or services, and has forsaken any and all bonds of commercial activity
besides the placement of competitive advertisements on a website corresponding
to a confusingly similar domain name, the Panel finds that Respondent’s use
cannot be said to constitute a bona fide offering
of goods or services under Policy ¶ 4(c)(i).
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 24 Hour Fitness USA,
Inc. v. 24HourNames.com-Quality Domains For
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website that prominently features third-party links to Complainant’s car rental competitors. Given that such advertisements are the sole items pertaining to the disputed domain name, it is not difficult to perceive that Respondent’s primary intent in registering the disputed domain name was to siphon the goodwill surrounding the mark and disrupt Complainant’s car rental business over the Internet—much to Respondent’s commercial benefit. Indeed, one of the links displayed appears to relate to Complainant, however such a connection is in superficial and in name only. For the Internet user who unwittingly clicks on such a link expecting to find Complainant, they are unceremoniously funneled to yet another domain name and website. Such evidence only reinforces the presumed intent of Respondent, and therefore the Panel finds that Respondent has engaged in bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”).
Respondent has registered the disputed domain name, which is confusingly similar to Complainant’s mark. An Internet user seeking Complainant’s well-known car rental operations would likely perceive the <enterprisecarrentals.org> domain name to be a reasonable location for Complainant’s website. Such an Internet user would then attempt to link up to Complainant via this disputed domain name, but then be whisked off to Respondent’s website that displays competitive car rental links for commercial benefit. Respondent’s placement of such advertisements on a website that corresponds to the disputed domain name—one that is confusingly similar to Complainant’s well-known ENTERPRISE mark—has therefore created a substantial likelihood of confusion as to Complainant’s affiliation and endorsement of the disputed domain name. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See 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.’”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
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 <enterprisecarrentals.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 18, 2008
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