Enterprise Holdings, Inc. v. Sergey Ovakulenko
Claim Number: FA1009001344344
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter, of Enterprise Holdings, Inc., Missouri, USA. Respondent is Sergey Ovakulenko (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisa.com>, registered with UK2 Group Ltd.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 1, 2010.
On September 3, 2010, UK2 Group Ltd. confirmed by e-mail to the National Arbitration Forum that the <enterprisa.com> domain name is registered with UK2 Group Ltd. and that Respondent is the current registrant of the name. UK2 Group Ltd. has verified that Respondent is bound by the UK2 Group 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 September 3, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 23, 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@enterprisa.com by e-mail. Also on September 3, 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 October 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <enterprisa.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterprisa.com> domain name.
3. Respondent registered and used the <enterprisa.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., owns the ENTERPRISE marks, which it licenses to Enterprise Rent-A-Car Company. ENTERPRISE is an internationally recognized brand offering car rental services in the United States, Canada, Ireland, Germany, and the United Kingdom. Complainant owns a trademark registration for the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,343,167 issued June 19, 1985).
Respondent, Sergey Ovakulenko, registered the <enterprisa.com> domain name on September 25, 2006. The disputed domain names resolves to a webpage displaying pay-per-click links to Complainant and Complainant’s competitors, including Avis Car Rental, Hertz Car Rental, and Budget Rent A Car.
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 owns a trademark registration for the ENTERPRISE mark with the USPTO (Reg. No. 1,343,167 issued June 19, 1985). The Panel finds that a trademark registration with the USPTO is sufficient to establish Complainant’s rights in the ENTERPRISE mark pursuant to Policy ¶ 4(a)(i), regardless of whether Respondent lives or operates in a different country. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant alleges that the <enterprisa.com> domain name is confusingly similar to Complainant’s ENTERPRISA mark because the disputed domain name merely replaces the letter “e” with the letter “a” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that a misspelling that merely exchanges one letter of Complainant’s mark for another letter fails to distinguish Respondent’s disputed domain name and Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). The Panel finds that an added gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel finds that Respondent’s <enterprisa.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark according to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant puts forth a prima facie case, the burden shifts to Respondent to demonstrate its rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks rights and legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that “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)(i), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests”); 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.”). The Panel elects, however, to consider the evidence in record to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Complainant argues that it has not licensed or otherwise permitted Respondent to use its ENTERPRISE mark. The WHOIS information for the <enterprisa.com> domain name identifies the registrant as “Sergey Ovakulenko,” supporting the Panel’s finding that Complainant is not commonly known by the disputed domain name and accordingly does not have rights and legitimate interests in the <enterprisa.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that respondent was commonly known by the disputed domain name).
Respondent’s <enterprisa.com> domain name resolves to a website containing a directory of pay-per-click links to the websites of car rental companies, including Complainant, Avis Car Rental, Hertz Car Rental, and Budget Rent A Car. The Panel finds that using Complainant’s ENTERPRISE mark in websites that divert Internet users away from Complainant and to the websites of Complainant’s competitors is not a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 Skyhawke Techns., 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).”).
Respondent’s <enterprisa.com> domain name is attempting to capitalize on a common misspelling or typographical error of Complainant’s ENTERPRISE mark in order to redirect Internet users who are seeking Complainant’s online presence. The Panel finds that this practice constitutes typosquatting, which is evidence that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 977979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant’s LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s <enterprisa.com> domain name resolves to a website containing pay-per-click links to the websites of Complainant and other car rental companies like Avis, Hertz, and Budget, among others. Such an activity clearly disrupts Complainant’s business as Internet users seeking Complainant’s products will be diverted to sites featuring competing products and services. The Panel finds this disruption of Complainant’s business and redirection of Internet users to Complainant’s competitors shows bad faith registration and use 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 engage 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)).
Complainant argues that Respondent’s registration of the <enterprisa.com> domain name that is simply a misspelling of Complainant’s ENTERPRISE mark intentionally creates a likelihood of confusion in order to attract Internet users seeking Complainant. Complainant argues that Respondent hopes to attract these Internet users in order to commercially profit from the click-through fees generated when Internet users click on any of the displayed links. The Panel finds that Respondent’s efforts to mislead Internet users and attract Internet users by creating confusion for commercial gain constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“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).”).
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar <enterprisa.com> domain name. The Panel finds this practice of typosquatting is evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent had engaged in bad faith registration and use under Policy ¶ 4(a)(iii); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatologica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
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 <enterprisa.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: October 13, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum