Enterprise Holdings, Inc. v. Rakshita Mercantile Private Limited
Claim Number: FA1108001404557
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter of Enterprise Holdings, Inc., Missouri, USA. Respondent is Rakshita Mercantile Private Limited (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterptisecarrental.com>, registered with Tirupati Domains and Hosting Private Limited.
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 August 24, 2011; the National Arbitration Forum received payment on August 24, 2011.
On August 25, 2011, Tirupati Domains and Hosting Private Limited confirmed by e-mail to the National Arbitration Forum that the <enterptisecarrental.com> domain name is registered with Tirupati Domains and Hosting Private Limited and that Respondent is the current registrant of the name. Tirupati Domains and Hosting Private Limited has verified that Respondent is bound by the Tirupati Domains and Hosting Private Limited 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 26, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 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@enterptisecarrental.com. Also on August 26, 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 September 20, 2011, 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 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 <enterptisecarrental.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterptisecarrental.com> domain name.
3. Respondent registered and used the <enterptisecarrental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., licenses Enterprise Rent-A-Car to provide car rental services under the ENTERPRISE mark. Complainant owns multiple 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, Rakshita Mercantile Private Limited, registered the <enterptisecarrental.com> domain name on April 7, 2007. The disputed domain name resolves to a web page that provides hyperlinks to competing third-party 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.
In an attempt to establish Policy ¶ 4(a)(i) rights in its ENTERPRISE mark, Complainant provides evidence of its trademark registrations with the USPTO (e.g., Reg. No. 1,343,167 registered June 18, 1985). In Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002), and Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), the panels determined that a national trademark registration is sufficient to establish rights in a mark. In Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), and Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007), the panels concluded that a complainant is not required to register a mark where the respondent lives or operates in order to establish rights in a mark. Based on this precedent, the Panel holds that Complainant has established rights in its ENTERPRISE mark according to Policy ¶ 4(a)(i).
As the disputed domain name contains a common misspelling of Complainant’s mark, replacing the letter “r” with the letter “t,” and simply adds the descriptive terms “car” and “rental” and the generic top-level domain (“gTLD”) “.com,” Complainant claims that Respondent’s <enterptisecarrental.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark. In Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001), and Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006), the panels found that a common misspelling of a complainant’s mark used in a domain name was still confusingly similar to the complainant’s mark. In Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002), and Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005), the panels held that the addition of descriptive terms failed to sufficiently distinguish a disputed domain name from a complainant’s mark. Finally, in Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), and Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002), the panels maintained that the addition of a gTLD was irrelevant to a Policy ¶ 4(a)(i) analysis because a top-level domain is required for any domain name. In accordance with the findings of previous UDRP panels, this Panel concludes that Respondent’s <enterptisecarrental.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark for the purpose of Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <enterptisecarrental.com> domain name. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held that the burden shifts to the respondent to prove it does have rights or legitimate interests when the complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). In this case, the Panel finds Complainant made a sufficient prima facie case. In Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000), the panel held that a respondent’s failure to respond to the Complaint allows the Panel to infer that a respondent does not have rights or legitimate interests in a disputed domain name. However, this Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
In order to demonstrate that Respondent is not commonly known by the <enterptisecarrental.com> domain name, Complainant asserts that it has not licensed or otherwise permitted Respondent to use its ENTERPRISE mark. As additional evidence, the Panel looks to the WHOIS information, which lists the registrant of the disputed domain name as “Rakshita Mercantile Private Limited.” In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), and Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), the panels held that a respondent was not commonly known by a disputed domain name if the WHOIS information did not indicate such a fact and the complainant had not authorized the respondent to use the complainant’s mark. After examining the entire record and researching UDRP precedent, the Panel determines that Respondent is not commonly known by the <enterptisecarrental.com> domain name pursuant to Policy ¶ 4(a)(i).
Complainant provides screen shots of the website resolving from the <enterptisecarrental.com> domain name, containing hyperlinks to Complainant’s competitors in the car rental industry, as proof that Respondent is making neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). In Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005), and TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002), the panels determined that a respondent’s use of a disputed domain name to host competing hyperlinks did not establish rights or legitimate interests under ¶¶ 4(c)(i) and (iii). Thus, the Panel finds that Respondent is not making a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <enterptisecarrental.com> domain name pursuant to Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
As noted above, Complainant included, with its Complaint, screen shots of the resolving website that show hyperlinks to Complainant’s competitors. While Complainant does not argue bad faith registration and use under Policy ¶ 4(b)(iii), past panels, in Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), and St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), found that a respondent’s registration and use of a disputed domain name to provide competing hyperlinks was in bad faith under Policy ¶ 4(b)(iii). Therefore, the Panel accordingly finds Respondent guilty of bad faith registration and use of its <enterptisecarrental.com> domain name pursuant to Policy ¶ 4(b)(iii).
Complainant does claim that Respondent registered and uses the <enterptisecarrental.com> domain name in bad faith under Policy ¶ 4(b)(iv) by arguing that Respondent is attempting to commercially gain from click-through fees by creating confusion as to Complainant’s affiliation with the disputed domain name. In Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), and Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panels found that a respondent did register and use a disputed domain name in bad faith when the respondent hosted hyperlinks to a complainant’s competitors and likely profited. Consequently, this Panel concludes that Respondent registered and uses the <enterptisecarrental.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
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 <enterptisecarrental.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 21, 2011
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