Enterprise Holdings, Inc. v. Balulescu Cristian
Claim Number: FA1108001404548
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is Balulescu Cristian (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecarrentaltoday.com>, registered with GoDaddy.com, Inc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 24, 2011; the National Arbitration Forum received payment on August 24, 2011.
On August 24, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentaltoday.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 August 25, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 14, 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@enterprisecarrentaltoday.com. Also on August 25, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 September 20, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <enterprisecarrentaltoday.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrentaltoday.com> domain name.
3. Respondent registered and used the <enterprisecarrentaltoday.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., is an international provider of car rental services. Complainant owns the ENTERPRISE mark, which it has used in connection with its rental services since 1974. Complainant holds a number of trademark registrations for the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,343,167 registered June 18, 1985).
Respondent, Balulescu Cristian, registered the <enterprisecarrentaltoday.com> domain name on February 10, 2011. The disputed domain name resolves to a website which contains information about Complainant and displays links to Complainant’s official website and to websites offering car rental services in direct competition with Complainant’s 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 asserts that it has demonstrated its rights in the ENTERPRISE mark. Panels have consistently determined that a complainant can prove rights in a mark through trademark registration with a federal authority. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority); see also 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). It is not necessary for Complainant to register its mark in the country where Respondent resides or operates. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Here, Complainant holds numerous trademark registrations for the ENTERPRISE mark with the USPTO (e.g., Reg. No. 1,343,167 registered June 18, 1985). Therefore, the Panel concludes that Respondent has established rights in the ENTERPRISE mark through its trademark registrations with the USPTO pursuant to Policy ¶ 4(a)(i).
Moreover, Complainant argues that Respondent’s <enterprisecarrentaltoday.com> domain name is confusingly similar to its ENTERPRISE mark. The disputed domain name utilizes the entire ENTERPRISE mark and alters it only by adding the descriptive words “car,” “rental,” and “today,” and by adding the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a gTLD is irrelevant to a confusingly similar determination. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel also finds that adding descriptive words, such as “car,” and “rental,” which relate to Complainant’s rental car business, and adding the generic word “today,” cannot avoid a finding of confusing similarity. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark). The Panel concludes that Respondent’s <enterprisecarrentaltoday.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark under Policy ¶ 4(a)(i) mark.
The Panel finds that Policy ¶ 4(a)(i) has been met.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name. In Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008), the panel stated, “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.” The Panel finds that Complainant has made a prima facie case. Due to Respondent’s failure to submit a response to the Complaint, the Panel is allowed to assume that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). The Panel chooses to first look to the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant claims that Respondent is not commonly known by the <enterprisecarrentaltoday.com> domain name. The WHOIS information indicates that Respondent is “Balulescu Cristian,” which is not similar to the disputed domain name. Complainant states that it has not licensed or otherwise permitted Respondent to use its ENTERPRISE mark within the disputed domain name. Based on these findings, the Panel holds that Respondent is not commonly known by the <enterprisecarrentaltoday.com> under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also 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).
Respondent’s <enterprisecarrentaltoday.com> domain name resolves to a website featuring Complainant’s ENTERPRISE mark, information about Complainant’s business, links to Complainant’s official website, and links to third-party websites in direct competition with Complainant’s rental car business. Respondent likely receives click-through fees from these third-party links. The Panel finds that Respondent’s use of the disputed domain name to operate a website which attempts to pass itself off as Complainant and redirects Internet users to competing websites is 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 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)); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been met.
Complainant contends that Respondent’s <enterprisecarrentaltoday.com> domain name disrupts its business in the car rental industry. Internet users intending to utilize Complainant’s rental car services may find Respondent’s website due to the confusingly similar disputed domain name and purchase similar services from one of the third-party links as a result. The Panel finds that such registration and use does disrupt Complainant’s business and is evidence of bad faith according to Policy ¶ 4(b)(iii). See 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); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel infers that Respondent generates click-through fees from the previously mentioned third-party links. Complainant claims that Respondent’s use of Complainant’s mark on the resolving website and within the confusingly similar disputed domain name, along with information about Complainant on the resolving site, creates a likelihood of confusion for Internet users as to Complainant’s sponsorship of, or affiliation with, the <enterprisecarrental.com> domain name. Respondent profits from this confusion by collecting click-through fees. Thus, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds that Policy ¶ 4(a)(iii) has been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarrentaltoday.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: October 3, 2011
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