Enterprise Holdings, Inc. v. Rampe Purda
Claim Number: FA1101001367038
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter of Enterprise Holdings, Inc., Missouri, USA. Respondent is Rampe Purda (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <enterprisereantal.com> and <enterpriserentacarsales.com>, registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 11, 2011; the National Arbitration Forum received payment on January 11, 2011. The Complaint was submitted in both Finnish and English.
On January 16, 2011, Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com confirmed by e-mail to the National Arbitration Forum that the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names are registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com and that Respondent is the current registrant of the names. Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 19, 2011, the Forum served the Finnish language Complaint and all Annexes, including a Finnish language Written Notice of the Complaint, setting a deadline of February 8, 2011 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@enterprisereantal.com and postmaster@enterpriserentacarsales.com. Also on January 19, 2011, the Finnish language 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 February 10, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Finnish language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <enterprisereantal.com> and <enterpriserentacarsales.com> domain names are confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark.
2. Respondent does not have any rights or legitimate interests in the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names.
3. Respondent registered and used the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., serves the daily rental needs of customers throughout the United States, Canada, Ireland, Germany and the United Kingdom. Complainant owns a trademark registration for the ENTERPRISE RENT-A-CAR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,371,192 issued July 25, 2000).
Respondent, Rampe Purda, registered the <enterprisereantal.com> domain name on November 1, 2007 and the <enterpriserentacarsales.com> domain name on April 20, 2008. The disputed domain names both resolve to websites populated with pay-per-click links, including many links to Complainant’s own websites and to the home pages of competing rental companies like Budget Rent A Car, Avis Rent a Car, Dollar Car Rental, Alamo Rent A Car, etc.
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 RENT-A-CAR mark with the USPTO (Reg. No. 2,371,192 issued July 25, 2000). The Panel finds that a USPTO trademark registration provides sufficient evidence to establish Complainant’s rights in the ENTERPRISE RENT-A-CAR mark under Policy ¶ 4(a)(i), even when Respondent lives or operates outside the United States. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark 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).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant establishes a prima facie case in support of its allegations, Policy ¶ 4(a)(ii) requires the burden to shift to Respondent to prove it has rights or legitimate interests in the disputed domain names. The Panel concludes that Complainant has established a prima facie case based on the arguments contained in the Complaint, and Respondent has failed to submit a Response to these proceedings. 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 Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.’’). Nevertheless, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name.
Complainant asserts that Respondent is not licensed by Complainant or otherwise permitted to use the ENTERPRISE RENT-A-CAR mark. The WHOIS information for the disputed domain name does not reflect that Respondent is associated with the disputed domain names. The Panel therefore finds that Respondent is not commonly known by the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names and lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant alleges that Respondent’s <enterprisereantal.com> and <enterpriserentacarsales.com> domain names resolve to web pages featuring a directory of pay-per-click links to Complainant’s own website and to the websites of Complainant’s competitors, like Budget Rent a Car, Avis Rent A Car, and Alamo Rent A Car. The Panel finds that using the disputed domain names to host such a pay-per-click link directory is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that many of the links present at the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names divert Internet users to the websites of Complainant’s competitors, including Budget Rent A Car and Alamo Rent A Car. This advertising for competitors in the form of pay-per-click links fosters competition with Complainant and diverts potential business away from Complainant. The Panel finds that Respondent’s efforts thus show bad faith registration and use under Policy ¶ 4(b)(iii) as they disrupt Complainant’s business. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant asserts that Respondent intentionally registered the <enterprisereantal.com> and <enterpriserentacarsales.com> domain names to capitalize on the fame and goodwill of Complainant’s mark to attract customers to Respondent’s resolving websites. By sponsoring related and competing pay-per-click links on the resolving websites, Respondent likely intends both to create a likelihood of confusion as to Respondent’s affiliation and to profit from the resulting click-through fees. The Panel finds that Respondent’s activities evidence bad faith registration and use according to Policy ¶ 4(b)(iv). See 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).”); 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 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 <enterprisereantal.com> and <enterpriserentacarsales.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 14, 2011
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