Enterprise Holdings, Inc. v. Terra Serve c/o Domain Administrator
Claim Number: FA1003001312295
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecom.com>, registered with Rebel.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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 9, 2010.
On March 10, 2010, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <enterprisecom.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.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 March 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to firstname.lastname@example.org. Also on March 10, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 7, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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" through submission of a Written Notice, as defined in Rule 1. 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:
name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecom.com> domain name.
3. Respondent registered and used the <enterprisecom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc.,
serves the daily rental needs of the customers throughout the
Respondent registered the <enterprisecom.com> domain name on October 14, 1998. The disputed domain name resolves to a website that displays links to third-party websites, some of which compete with Complainant’s business.
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 asserts rights in the
Complainant claims Respondent’s disputed <enterprisecom.com> domain name is
confusingly similar to its
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must first show Respondent lacks rights or legitimate interests in the <enterprisecom.com> domain name under Policy ¶ 4(a)(ii). After Complainant makes a prima facie case, Respondent must prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also 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.”). Despite Respondent’s failure to respond, the Panel will review the record to determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts Respondent is
not in any way affiliated with Complainant nor is Respondent licensed or
permitted to use its
Respondent’s disputed domain name resolves to a website that
list links to other websites and links to websites that compete with Complainant’s
business. Respondent presumably receives
click-through fees from each Internet user redirected to these third-party
websites. The Panel finds Respondent’s
use of the disputed domain names does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or
a legitimate noncommercial fair use under Policy ¶ 4(c)(iii). See
Computer Doctor Franchise Sys., Inc. v.
Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the
respondent’s website, which is blank but for links to other websites, is not a
legitimate use of the domain names); see
also Jerry Damson, Inc. v.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the <enterprisecom.com> domain name to redirect Internet users to a website that list links to third-party websites, including links to Complainant’s competitors, disrupts Complainant’s business and constitutes registration and use 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Complainant argues Respondent is deliberately using a domain name that is confusingly similar to Complainant’s mark to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website. As previously discussed, Respondent likely receives click-through fees from its use of the disputed domain name. The Panel finds Respondent’s use of the disputed domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Am. Express Co. v. Buy Now, FA 318783 (Nat. Arb. Forum Oct. 14, 2004) (finding that “…Respondent’s disputed domain names must cause Internet users mistakenly to believe that the disputed domain names are affiliated with Complainant. The user confusion that the domain names must cause is evidence that Respondent registered and used the domain names in bad faith.”); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”).
The Panel finds 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 <enterprisecom.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: April 20, 2010
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