Enterprise Holdings, Inc. v. N/A / N/A
Claim Number: FA1101001367126
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter of Enterprise Holdings, Inc., Missouri, USA. Respondent is N/A / N/A (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <e-nterprise.com>, registered with OnlineNIC, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2011; the National Arbitration Forum received payment on January 12, 2011.
On January 13, 2011, OnlineNIC, Inc. confirmed by e-mail to the National Arbitration Forum that the <e-nterprise.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the names. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, Inc. 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 13, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 2, 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@e-nterprise.com. Also on January 13, 2011, 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 February 3, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <e-nterprise.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <e-nterprise.com> domain name.
3. Respondent registered and used the <e-nterprise.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., is an international car rental company. Complainant has a registered trademark for its ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,343,167 issued June 18, 1985).
Respondent registered the <e-nterprise.com> domain name on March 31, 2003. The disputed domain name resolves to a website featuring links to Complainant’s website as well as links to other websites that are unrelated to Complainant’s car rental business.
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 alleges it has established rights in the ENTERPRISE mark based on its registration of the mark with the USPTO (e.g., Reg. No. 1,343,167 issued June 18, 1985). Registration with a federal trademark authority is sufficient to establish rights in a mark. 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 Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Accordingly, the Panel concludes Complainant’s trademark registration of the ENTERPRISE mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <e-nterprise.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark. Respondent simply inserted a hyphen in between the first two letters of Complainant’s mark. Respondent also added the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds that inserting hyphens into an established mark, in addition to adding a gTLD, are insufficient to create a unique domain name that is not confusingly similar to Complainant’s mark. See Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds Policy ¶ 4(a)(i) has been established.
Complainant contends that Respondent lacks rights and legitimate interests in the <e-nterprise.com> domain name. Previous panels have found that a complainant making a prima facie showing in support of its allegations shifts the burden to the respondent to prove that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has made a prima facie showing and because Respondent failed to make a timely response, the Panel may assume that it does not have rights or legitimate interests in the <e-nterprise.com> domain name. However, the Panel chooses to examine the evidence contained in the record to determine whether Respondent has rights or legitimate interests in the <e-nterprise.com> domain name under Policy ¶ 4(c). 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Complainant alleges that Respondent is not commonly known by the disputed domain name. Respondent has failed to allege any evidence that would support a finding that it is commonly known by the disputed domain name and the Panel, after a thorough search of the record, could find no evidence that would provide a basis for finding that Respondent is commonly known by the disputed domain name. Moreover, the WHOIS information does not contain any information about the registrant that would support a finding that Respondent is commonly known by the <e-nterprise.com> domain name.
The disputed domain name directs Internet users to a website that is used by Respondent to post advertisements and links to Complainant’s website in addition to links that are unrelated to Complainant’s car-rental business. Complainant alleges that Respondent receives click-through fees in return for redirecting Internet users to Complainant’s own website as well as those of others. The Panel finds that directing Internet users to a website that features links to Complainant’s website as well as the websites of other, unrelated businesses, is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); 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).”)
The Panel finds Policy ¶ 4(a)(ii) has been established.
Respondent’s <e-nterprise.com> domain name resolves Internet users to a website featuring hyperlinks to Complainant’s website as well as the websites of businesses that are unrelated to Complainant. The Panel presumes that Respondent receives click-through fees for this redirection. The Panel determines that Internet users searching for Complainant may find Respondent’s website and become confused as to Complainant’s sponsorship of and affiliation with the disputed domain name and resolving website. The Panel finds such use to be evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Association of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel finds Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <e-nterprise.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 14, 2011
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