Enterprise Holdings, Inc. v. Private Registration c/o WhoisGuardService.com
Claim Number: FA1003001313209
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprised.com>, registered with Schuechternet Ltd d/b/a 800Name.com.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 15, 2010.
On March 31, 2010, Schuechternet Ltd d/b/a 800Name.com confirmed by e-mail to the National Arbitration Forum that the <enterprised.com> domain name is registered with Schuechternet Ltd d/b/a 800Name.com and that Respondent is the current registrant of the name. Schuechternet Ltd d/b/a 800Name.com has verified that Respondent is bound by the Schuechternet Ltd d/b/a 800Name.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 31, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 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 postmaster@enterprised.com. Also on March 31, 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 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 "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:
1. Respondent’s
<enterprised.com> domain name
is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprised.com> domain name.
3. Respondent registered and used the <enterprised.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise
Holdings, Inc., holds multiple trademark registrations with the United States
Patent and Trademark Office (“USPTO”) for the
Respondent, Private Registration c/o WhoisGuardService.com, registered the <enterprised.com> domain name on November 20, 2006. The disputed domain name resolves to a website featuring links to Complainant’s website and websites 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 asserts rights in its
Complainant argues that
Respondent’s <enterprised.com> domain name is confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See 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.”); see also 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.”).
The WHOIS information does not indicate the Respondent is
commonly known by the disputed domain name. Complainant alleges that it has not licensed
or otherwise permitted Respondent to use its
Respondent’s <enterprised.com>
domain name
was registered on November 20, 2006. The
disputed domain name resolves to a website featuring links to Complainant’s
website and websites of Complainant’s competitors. The Panel finds that Respondent’s use of the
disputed domain name does not constitute a bona
fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Skyhawke Techs., LLC v. Tidewinds
Group, Inc., FA 949608 (Nat. Arb.
Forum May 18, 2007) (“Respondent is using the <skycaddy.com>
domain name to display a list of hyperlinks, some of which advertise
Complainant and its competitors’ products.
The Panel finds that this use of the disputed domain name does 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
Jerry
Damson, Inc. v.
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to redirect Internet users seeking Complainant’s goods and services to a website displaying links to Complainant’s competitors. The Panel finds that Respondent’s use of the <enterprised.com> to redirect Internet users seeking Complainant’s website to a website that displays links to businesses that directly compete with Complainant’s constitutes a disruption of Complainant’s business under Policy ¶ 4(b)(iii). See 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); see also 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)).
Respondent is using the disputed domain name to link Internet users seeking Complainant’s goods and services to a website that offers links to commercial websites in direct competition with Complainant. The Panel presumes that Respondent profits from this diversion scheme by receiving pay-per-click fees. The Panel finds Respondent’s use of the confusingly similar disputed domain name to attract Internet users seeking Complainant’s goods or services and divert them to a commercial website featuring third-party links is evidence of bad faith registration and use under Policy ¶ 4(b)(iv) because Respondent presumably profits from this use. 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 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)(iv) 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).
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 <enterprised.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: April 30, 2010
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