Enterprise Holdings, Inc. v. Above.com Domain Privacy
Claim Number: FA1007001337435
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 <enterprosecarrental.com>, registered with Above.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 26, 2010.
On July 27, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <enterprosecarrental.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.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 30, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 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@enterprosecarrental.com by e-mail. Also on July 30, 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 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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
<enterprosecarrental.com> domain name is confusingly similar to
Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprosecarrental.com> domain name.
3. Respondent registered and used the <enterprosecarrental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc.,
uses the
Respondent, Above.com Domain Privacy, registered the <enterprosecarrental.com> domain name on July 6, 2007. The disputed domain name resolves to a directory website that lists hyperlinks to third-party websites that offer car rental services in competition with Complainant’s 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 avers Respondent’s <enterprosecarrental.com>
domain name is confusingly similar to its
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first establish a prima facie case showing Respondent lacks rights and legitimate interests in the <enterprosecarrental.com> domain name pursuant to Policy ¶ 4(a)(ii). Once Complainant establishes this case, the burden shifts to Respondent to demonstrate it has rights or legitimate interests. The Panel may infer Respondent lacks rights and legitimate interests based on Respondent’s failure to submit a Response. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); 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.”). However, despite Respondent’s failure to respond, the Panel will examine the record to determine whether Respondent holds rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts it has not licensed or otherwise
authorized Respondent to use its
Complainant alleges Respondent’s <enterprosecarrental.com> domain name resolves to a website that provides links to third-party websites that offer car rental services in competition with Complainant’s car rental services. Complainant submits screen shots of Respondent’s resolving website, which shows hyperlinks with titles such as “Rentals car,” “Enterprize Car Rental,” “Top Sites for Enterprize Rental Cars,” and “Top Sites for Enterprise Car Rental.” The Panel presumes that Respondent uses its disputed domain name to profit from click-through fees. Therefore, the Panel finds Respondent uses a confusingly similar domain name to redirect Internet users to a directory website that provides links to websites that compete with Complainant’s business in order to profit from click-through fees. Accordingly, the Panel finds Respondent’s use of the disputed domain name does not qualify as 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 TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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 finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds the disputed domain name redirects Internet users to Respondent’s website, which provides links to Complainant’s competitors. Therefore, the Panel determines Respondent’s <enterprosecarrental.com> domain name disrupts Complainant’s business, which constitutes registration and use in bad faith under 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 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)).
Additionally, Complainant argues Respondent intentionally
attempted to attract, for commercial gain, Internet users to its website, by
creating a likelihood of confusion with Complainant’s
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprosecarrental.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 27, 2010
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