Rent-A-Car Company v. Website Administrator c/o
Claim Number: FA0806001203423
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 <enterpriserentalcar.net>, registered with Wild West Domains, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
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 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.
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:
<enterpriserentalcar.net> domain name is confusingly similar to
2. Respondent does not have any rights or legitimate interests in the <enterpriserentalcar.net> domain name.
3. Respondent registered and used the <enterpriserentalcar.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is an
international rental car business that has $9 billion in annual revenues and
850,000 rental vehicles in its fleet.
Complainant has registered its trademarks corresponding to its business
with the United States Patent and Trademark Office (“USPTO”) and the United
Kingdom Intellectual Property Office (“UKIPO”).
These marks include the
Respondent registered its <enterpriserentalcar.net> domain name on November 25, 2007, and is currently using the disputed domain name to resolve to a website that displays third-party advertisements and links, some of which lead to Complainant’s direct competitors in the rental car industry.
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 submitted evidence of its rights in the
Respondent’s <enterpriserentalcar.net> domain
name incorporates Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and
legitimate interests in the <enterpriserentalcar.net> domain name
under Policy ¶ 4(a)(ii). The Panel finds that Complainant has set
forth a sufficient prima facie case
supporting its allegations and that Respondent therefore receives the task of
demonstrating its rights or legitimate interests. 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
There is no information within the record, including the
WHOIS domain name registration information, to suggest that Respondent is
commonly known by the <enterpriserentalcar.net> domain name. In fact, the registrant of record is listed
as “Website Administrator c/o
Respondent’s <enterpriserentalcar.net> domain name resolves to a website that features third-party advertisements and links for Complainant’s direct competitors. Respondent presumably receives referral fees from the advertisers listed on the website. The Panel therefore finds that Respondent has not created a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name diverts Internet users
seeking Complainant to a website that promotes Complainant’s competitors via
advertisements. Given the international
appeal of Complainant’s marks, the Panel finds that Respondent primarily
intended to disrupt Complainant’s business for monetary benefit, and therefore
engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure,
Inc., FA 94864 (Nat. Arb.
It is very likely that Internet users seeking Complainant could come across the disputed domain name. These Internet users would then be confounded at ending up at Respondent’s website, as it provides links for Complainant’s competitors. Respondent has therefore created a likelihood of confusion as to Complainant’s endorsement of the disputed domain name and corresponding website. The Panel finds Respondent to have engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also 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).
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 <enterpriserentalcar.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 15, 2008
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