Enterprise Holdings, Inc. v. Dechen Lau
Claim Number: FA0909001285534
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Annie
Chu Haselfeld, of Holland & Hart LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprisecarrentalreview.com>, registered with Godaddy.com, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 21, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 22, 2009.
On September 22, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentalreview.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 September 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 13, 2009 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@enterprisecarrentalreview.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 13, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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
<enterprisecarrentalreview.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrentalreview.com> domain name.
3. Respondent registered and used the <enterprisecarrentalreview.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise
Holdings, Inc., is a vehicle rental company that promotes its business
under the
Respondent, Dechen Lau, registered the <enterprisecarrentalreview.com> domain name on December 1, 2008. The disputed domain name resolves to a website that contains advertisements and links to rental-car companies and rental-car booking agencies that compete 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
established sufficient rights in the
Complainant contends that Respondent’s
<enterprisecarrentalreview.com> domain name is confusingly similar to its
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <enterprisecarrentalreview.com> domain name. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii), and that Respondent has failed to submit a Response. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”).
Complainant contends that Respondent is not commonly known
by the <enterprisecarrentalreview.com>
domain name nor has it ever been the owner or licensee of the
Complainant contends
that Respondent is using the <enterprisecarrentalreview.com>
domain name to operate a website
that contains links to Complainant’s competitors in the rental-car business. The Panel finds that using a domain name
incorporating a mark to promote the businesses of competitors of the mark’s
owner is neither a bona fide offering
of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use of a domain name under
Policy ¶ 4(c)(iii). See Wal-Mart Stores, Inc. v.
Power of Choice Holding Co.,
FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of
domain names confusingly similar to the complainant’s WAL-MART mark to divert
Internet users seeking the complainant’s goods and services to websites
competing with the complainant did not constitute 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 also Carey Int’l, Inc. v.
Kogan, FA 486191
(Nat. Arb. Forum July 29, 2005) (holding that the respondent’s use of disputed
domain names to market competing limousine services was not a bona fide offering
of goods or services under Policy ¶ 4(c)(i), as the respondent was
appropriating the complainant’s CAREY mark in order to profit from the mark). The Panel therefore finds that Respondent’s
use of the <enterprisecarrentalreview.com> domain name is neither a bona fide offering of goods or services
under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the <enterprisecarrentalreview.com>
domain name under Policy
¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that
Respondent is using the <enterprisecarrentalreview.com>
domain name (initial registration: December
1, 2008) to host a website advertising competitors of
Complainant. Complainant also contends
that this diversion of Internet users to competing businesses is an intentional
disruption of Complainant’s business by Respondent. Consequently, Complainant contends that
Respondent’s actions are evidence of Respondent’s registration and use
of the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii). The Panel agrees with Complainant’s contentions
and finds that Respondent’s competitive use of the disputed domain name
indicates that Respondent registered and is using the disputed domain name in
bad faith pursuant to Policy ¶ 4(b)(iii).
See Red Hat, Inc. v. Haecke,
FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged
in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the
disputed domain names to operate a commercial search engine with links to the
products of the complainant and to complainant’s competitors, as well as by
diverting Internet users to several other domain names); see also
Complainant also contends that Respondent is collecting
“click-through” fees from the companies to which Respondent is diverting
Internet users, and that these fees constitute commercial gain which is
evidence of Respondent bad faith registration and use of the <enterprisecarrentalreview.com> domain name pursuant to Policy ¶ 4(b)(iv). The Panel agrees and finds that Respondent’s
commercial gain from its use of the confusingly similar <enterprisecarrentalreview.com> domain name is evidence of its bad faith registration and
use of the <enterprisecarrentalreview.com>
domain name pursuant to Policy ¶
4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum
July 18, 2006) (finding that the respondent engaged in bad faith registration
and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see also Maricopa Cmty. Coll.
Dist. v. College.com, LLC, FA 536190 (Nat. Arb. Forum Sept. 22,
2005) (“The Panel infers that Respondent receives click-through fees for
diverting Internet users to a competing website. Because Respondent’s domain name is identical
to Complainant’s
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 <enterprisecarrentalreview.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: October 30, 2009
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