Enterprise Holdings, Inc. v. Pradit Kongpan
Claim Number: FA1002001306683
Complainant is Enterprise
Holdings, Inc. (“Complainant”), represented by Renee Reuter, of Enterprise Holdings, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprisecarrentaltip.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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 4, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 8, 2010.
On Febuary 8, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentaltip.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 February 16, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 8, 2010 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@enterprisecarrentaltip.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is an international provider of automobile rental services.
Complainant holds several registrations with the United
States Patent and Trademark Office (“USPTO”) for its
Respondent registered the <enterprisecarrentaltip.com> domain name on November 28, 2009.
Respondent’s domain name resolves to a website displaying third-party links to the websites of enterprises operating in competition with the business of Complainant, as well as a link for Complainant’s official website, and other unrelated links.
Respondent’s <enterprisecarrentaltip.com>
domain name is confusingly similar to Complainant’s
Complainant has not given Respondent permission to use its
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, nor is Respondent making a noncommercial or fair use of the disputed domain name.
Respondent does not have any rights or legitimate interests in the domain name <enterprisecarrentaltip.com>.
Respondent’s use of the contested domain name to display links to car rental services competing with the business of Complainant disrupts Complainant’s business.
Respondent registered and uses the <enterprisecarrentaltip.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in its
As
the [complainant’s] mark is registered with the USPTO, [the] complainant has
met the requirements of Policy ¶ 4(a)(i).
Complainant’s mark registrations need not be in the country where Respondent resides in order to satisfy the requirements of Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates; it is sufficient that a complainant can demonstrate a mark in some jurisdiction); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its trademark in the country of a respondent’s residence).
Complainant contends that Respondent’s <enterprisecarrentaltip.com> domain name is confusingly similar to its
The
additions of generic words with an obvious relationship to Complainant’s
business and a gTLD renders the disputed domain name confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel therefore finds that Respondent’s <enterprisecarrentaltip.com> domain name is confusingly similar under Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have any rights to or legitimate interest in the disputed domain name. Complainant is required to make out a prima facie case in support of these allegations. Once Complainant has produced a prima facie case, the burden shifts to Respondent to show that it does have rights to or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008):
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant has produced a prima facie case. Owing to
Respondent’s failure to respond to these proceedings, we may presume that Respondent
does not have any rights to or legitimate interests in the disputed domain
name. 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 Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests in a contested domain name where a respondent failed to respond to a complaint filed under the Policy). We will nonetheless examine the record before us, by reference to the standards set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent possesses rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent
does not deny, that Complainant has not given Respondent permission to use its
We also observe that Complainant contends, and Respondent does not contradict its contention, that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, nor is Respondent making a noncommercial or fair use of the disputed domain name. Nor does Respondent object to Complainant’s assertion to the effect that Respondent is using the <enterprisecarrentaltip.com> domain name to resolve to a website that offers click-through links and advertisements for Complainant’s competitors in the car rental business as well as links to unrelated websites. Respondent’s use of the disputed name to redirect Internet users to Complainant’s competitors, as alleged, presumably for its financial gain, does not constitute 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that a respondent was not using domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use where that respondent used the domains to divert Internet users to a website that offered services competing with those offered by a complainant under its marks); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name where that respondent was using the domain name to operate a website containing links to various commercial websites competing with the business of a complainant, which the panel found not to be a use of the domain 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)).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent’s use of the contested domain name to display links to competing car
rental services disrupts Complainant’s business. We concur, and we further conclude that Respondent’s
use of the disputed domain name to display third-party links to competing car
rental businesses is evidence of registration of and use of the domain in bad
faith under Policy ¶ 4(b)(iii). See David Hall Rare Coins v.
In the circumstances here presented, we further conclude
that Respondent’s use of the contested domain name to attract Internet users to
its website, where it displays links both unrelated to and in competition with the
business of Complainant, behavior for which Respondent presumably receives
click-through fees for each Internet user thus misdirected, constitutes bad
faith registration and use of the domain under Policy ¶ 4(b)(iv). See
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 Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use of a disputed domain name under Policy ¶ 4(b)(iv) where a respondent diverted to its own website Internet users searching for a complainant’s website, likely profiting from the receipt of click-through fees in the process).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <enterprisecarrentaltip.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 26, 2010
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