Enterprise Rent-A-Car Company v. Josef Vanmaanen
Claim Number: FA0806001203422
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 <enterprisecarrentalabc.info>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 10, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 11, 2008.
On June 10, 2008, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentalabc.info> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.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 June
12, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 2, 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@enterprisecarrentalabc.info
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 18, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
<enterprisecarrentalabc.info>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrentalabc.info> domain name.
3. Respondent registered and used the <enterprisecarrentalabc.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a company providing auto rental services
under the
The <enterprisecarrentalabc.info> domain name was registered on April 16, 2008 and resolves to a series of links and a purported “Guide to Choosing a Cheap Car Company,” all of which resolve to either Complainant’s website or to the websites of various third-parties, many of whom offer services 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 sufficiently
established its rights in the
Respondent’s <enterprisecarrentalabc.info>
domain name is confusingly similar to Complainant’s ENTERPRISE mark pursuant to
Policy ¶ 4(a)(i) because Respondent’s domain name incorporates the ENTERPRISE
mark in its entirety with the generic term “abc” and terms describing precisely
the goods and services offered under Complainant’s mark. See
Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026
(WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in
dispute contains the identical mark of the complainant combined with a generic
word or term); see also Am. Express Co. v. Buy Now, FA 318783
(Nat. Arb. Forum Oct. 14, 2004) (“In the view of the Panel, the disputed domain
names are confusingly similar to Complainant’s AMERICAN EXPRESS and AMEX
marks. Each disputed domain name
contains the AMERICAN EXPRESS or AMEX marks in its entirety and merely adds
nondistinctive, descriptive and generic terms, some of which describe
Complainant’s business.”); see also Napster, Inc. v. Mededovic, D2005-1263
(WIPO Jan. 17, 2006) (finding confusing similarity where “[t]he disputed domain
name comprises the highly distinctive NAPSTER trademark itself, combined with
the suffix “togo.”). In addition, top-level domains such
as “.info” are not considered in evaluating whether a domain name is
confusingly similar to a mark. See Isleworth Land Co. v. Lost in
Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well
established principle that generic top-level domains are irrelevant when conducting
a Policy ¶ 4(a)(i) analysis.”); see also
Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain
is irrelevant when establishing whether or not a mark is identical or
confusingly similar, because top-level domains are a required element of every
domain name.”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no
rights or legitimate interests in the disputed domain name. See
VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000)
(“Respondent's default, however, does not lead to an automatic ruling for
Complainant. Complainant still must establish a prima facie case showing that
under the Uniform Domain Name Dispute Resolution Policy it is entitled to a
transfer of the domain name.”). The Panel finds that Complainant has
established a prima facie case and
that the burden is thus shifted to Respondent to show that it does have rights
or legitimate interests in the disputed domain name. 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 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”).
Respondent has failed to reply to the Complaint. Consequently, the Panel presumes that
Respondent has no rights or legitimate interests in the disputed domain name, but
will nonetheless consider all the evidence in the record in consideration of
the factors listed under Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro,
FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to
respond, it is presumed that Respondent lacks all rights and legitimate
interests in the disputed domain name.”); see
also Charles Jourdan Holding
AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the
panel to draw adverse inferences from the respondent’s failure to reply to the
complaint).
Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the <enterprisecarrentalabc.info> domain name. Additionally, Complainant has never authorized or licensed Respondent to use or exploit Complainant’s mark in any way. Absent any evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The <enterprisecarrentalabc.info> domain name
resolves to a series of links and a purported “Guide to Choosing a Cheap Car
Company,” all of which when clicked upon redirect Internet users to either
Complainant’s website or to the websites of various third-parties, many of whom
offer services in direct competition with Complainant. The Panel concludes that this is neither a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). See
ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26,
2007) (rejecting the respondent’s contention of rights and legitimate interests
in the <bravoclub.com> domain name because the respondent was merely
using the domain name to operate a website containing links to various
competing commercial websites, which the panel did not find to be 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 also U.S.
Franchise Sys., Inc. v. Howell, FA 152457 (Nat. Arb. Forum May 6, 2003) (holding that the respondent’s use of the
complainant’s mark and the goodwill surrounding that mark as a means of
attracting Internet users to an unrelated business was not a bona fide offering of goods or services).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <enterprisecarrentalabc.info>
domain name resolves to a
series of links to both Complainant’s website and the websites of various
third-parties, many of whom offer services in direct competition with those
offered under Complainant’s ENTERPRISE mark.
The Panel finds this disruptive use to establish Respondent’s bad faith
registration and use of the disputed domain name pursuant to Policy ¶
4(b)(iii). See Am. Airlines, Inc. v.
Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007)
(holding that where the respondent’s website featured hyperlinks to competing
websites and included a link to the complainant’s website, the respondent’s use
of the <redeemaamiles.com> domain name constituted disruption under
Policy ¶ 4(b)(iii)); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”).
Moreover, Respondent
is presumed to be commercially benefitting from such use of the <enterprisecarrentalabc.info>
domain name through
click-through-fees. Accordingly, the
Panel finds this to be additional evidence of Respondent’s bad faith
registration and use of the disputed domain name pursuant to Policy ¶
4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain
name to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).”); 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.’”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarrentalabc.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 15, 2008
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