Enterprise Holdings, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin
Claim Number: FA1006001331738
Complainant is Enterprise
Holdings, Inc. (“Complainant”), represented by Renee Reuter, of Vanguard Trademark Holdings USA LLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprisecarretal.com>, registered with FABULOUS.COM PTY LTD.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 24, 2010.
On June 26, 2010, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <enterprisecarretal.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY LTD. 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 July 6, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 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@enterprisecarretal.com. Also on July 6, 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 August 1, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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:
1. Respondent’s
<enterprisecarretal.com> domain name is confusingly similar to
Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarretal.com> domain name.
3. Respondent registered and used the <enterprisecarretal.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc.,
is the largest car rental provider to international travelers visiting
Respondent, Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin, registered the <enterprisecarretal.com> domain name on January 19, 2006. The disputed domain name resolves to a directory website that provides links to Complainant’s websites and links to third-party websites that offer competing car rental services.
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 alleges Respondent’s <enterprisecarretal.com>
domain name is confusingly similar to its
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first establish Respondent does not have rights and legitimate interests in the <enterprisecarretal.com> domain name. After Complainant makes this prima facie case, the burden shifts to Respondent to demonstrate it has 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.”). The Panel may find Respondent’s failure to submit a response indicates Respondent lacks right 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.”). However, the Panel will examine the record to determine whether Respondent holds rights or legitimate interests based on the Policy ¶ 4(c) factors.
Complainant states it has not licensed or otherwise
authorized Respondent to use its
Complainant alleges the disputed domain name resolves to a website that consists of links to Complainant’s website and links to website that offer competing rental car services. A screen shot of the resolving website shows hyperlinks with headings like “Rent A Car,” “Car Rental,” and “Cheap Car Rental.” Complainant also contends Respondent profits from this use through the receipt of “click-through” fees. The Panel agrees. Therefore, the Panel finds Respondent is not using the disputed domain name for 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 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 Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds Respondent uses its <enterprisecarretal.com> domain name to redirect Internet uses seeking Complainant’s services to its websites. Once there, Internet users encounter a directory website that provides links to Complainant’s website as well as links to third-party websites of Complainant’s competitors. The Panel finds the use of a confusingly similar domain name to reroute Internet users to Complainant’s competitors disrupts Complainant’s business, which qualifies as 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).
The Panel finds Respondent uses a confusingly similar domain name to attract Internet users to its site, for commercial gain, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, or affiliation of Complainant with Respondent’s website. Therefore, the Panel finds this behavior constitutes registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme); see also 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)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <enterprisecarretal.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: August 10, 2010
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