Enterprise Rent-A-Car Company v. Smitch Derjansor
Claim Number: FA0808001222441
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by David
R. Haarz, of Harness, Dickey & Pierce P.L.C, Virginia,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprise-car-rental-service.com>, registered with GoDaddy.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On September 2, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 22, 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:
1. Respondent’s <enterprise-car-rental-service.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterprise-car-rental-service.com> domain name.
3. Respondent registered and used the <enterprise-car-rental-service.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, has been in the
business of offering automobile rental services since 1963. It owns numerous trademark registrations of
Respondent’s <enterprise-car-rental-service.com> domain name was registered on July 31, 2008 and resolves to website displaying the title “Enterprise Car Rental Service,” and a variety of information and advertisements related to third-parties, including some 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 has sufficiently established rights in the
The <enterprise-car-rental-service.com> domain name contains Complainant’s ENTERPRISE
mark in its entirety, followed by the descriptive phrase “car rental service,”
where each word is separated by a hyphen.
Additionally, the disputed domain name includes the generic top-level
domain (“gTLD”) “.com.” First, it is
well-established that the inclusion of hyphens and a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27,
2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to
Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is
irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); 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).”). Second, the addition of a generic phrase that
accurately describes the services offered under a given mark, will not
distinguish a disputed domain name. The
phrase “car rental services” is precisely the type of service offered under the
The Panel concludes that Complainant has established Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), a complainant must first establish a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, before the Panel may proceed to make its own determination. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that Complainant has met this threshold and accordingly that the burden is shifted to Respondent to prove that it has rights or legitimate interests in the disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”).
Respondent has not submitted anything in reply to the
Complaint. As a result, the Panel will
proceed to examine the record under Policy ¶ 4(c), but with the presumption
that Respondent lacks rights and legitimate interests in the disputed domain
name. See Broadcom
Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum
There is nothing in the record, including Respondent’s WHOIS
information, which lists the alias “Smitch Derjansor,” that indicates that
Respondent is or ever was commonly known by the disputed domain name. Moreover, Complainant contends that it “has
at no time given permission or otherwise authorized Respondent to use the
The <enterprise-car-rental-service.com> domain name resolves to a website promptly titled with and displaying Complainant’s ENTERPRISE mark, along with a range of information and advertisements for third-parties that offer automobile rental services in direct competition with Complainant. The Panel finds that this does not constitute either 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 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).
The Panel concludes that Complainant has established Policy ¶ 4(a)(ii).
The <enterprise-car-rental-service.com> domain name resolves to information and advertisements about third-parties that offer competing automobile rental services. The Panel determines that this competitive and disruptive use establishes that Respondent registered and is using the <enterprise-car-rental-service.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant contends that it “is clear that Respondent has
[registered and is using] the <enterprise-car-rental-service.com> [domain name] with a view to commercial fain
from ‘click-through’ payments….” Since
there is a series of links and advertisements that resolve to direct competitors
of Complainant on the website that resolves from the disputed domain name, the
Panel may presume that this use financially benefits Respondent through some
type of referral fee. As a result, the
Panel may find this to additional evidence of Respondent’s bad faith
registration and use of the <enterprise-car-rental-service.com> domain
name pursuant to Policy ¶ 4(b)(iv). See
The Panel concludes that Complainant has established 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 <enterprise-car-rental-service.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 10, 2008
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