Enterprise Holdings, Inc. v. Raju Vegesna
Claim Number: FA1205001444225
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter of Enterprise Holdings, Inc., Missouri, USA. Respondent is Raju Vegesna (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisy.com>, registered with GoDaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 15, 2012; the National Arbitration Forum received payment on May 15, 2012.
On May 16, 2012, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisy.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 May 16, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2012 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@enterprisy.com. Also on May 16, 2012, 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 June 8, 2012, 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:
Respondent’s <enterprisy.com> domain name, the domain name at issue, is confusingly similar to Complainant’s ENTERPRISE mark.
Respondent does not have any rights or legitimate interests in the domain name at issue.
Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has used its ENTERPRISE mark in connection with its car rental business since 1974 and has extensive operations in the USA and in Europe. Complainant registered the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,343,167 registered June 18, 1985). This registration of the ENTERPRISE mark predates Respondent’s registration of the disputed domain name in December 2007 by over twenty years. Respondent’s <enterprisy.com> domain name resolves to a website offering links to Complainant’s websites, as well as links to the websites of other car rental companies, like Sixt Car Rental. Complainant has not authorized or otherwise permitted Respondent to use Complainant’s ENTERPRISE mark.
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."
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 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.”).
Complainant established its rights in the ENTERPRISE mark when it registered the mark with the USPTO (e.g., Reg. No. 1,343,167 registered June 18, 1985). Therefore, Complainant established its rights in the ENTERPRISE mark under Policy ¶ 4(a)(i) by registering it with the USPTO. See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Respondent’s <enterprisy.com> domain name is confusingly similar to its ENTERPRISE mark. The disputed domain name includes a similar variation of the mark, formed by replacing the third “e” in “Enterprise” with a “y.” The disputed domain name includes the generic top-level domain (“gTLD”) “.com.” Based upon the changes made to Complainant’s mark by Respondent to compose the <enterprisy.com> domain name, the Panel concludes that the domain name is confusingly similar to Complainant’s ENTERPRISE mark under Policy ¶ 4(a)(i). 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); see also Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”).
The Panel finds that Policy ¶ 4(a)(i) has been established.
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent clearly does not operate a business known as “Enterprisy.” Respondent failed to submit evidence to support a finding that it is commonly known by the disputed domain name. Complainant has not authorized or otherwise permitted Respondent to use Complainant’s ENTERPRISE mark. The WHOIS information identifies the registrant of the disputed domain name as “Raju Vegesna.” Based upon the record, the Panel concludes that Respondent is not commonly known by the <enterprisy.com> domain name 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).
Further, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <enterprisy.com> domain name. Respondent’s <enterprisy.com> domain name resolves to a website offering links to Complainant’s websites, as well as links to the websites of other car rental companies, like Sixt Car Rental. Thus, the Panel finds that Respondent is not engaging in a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent is deliberately trying to attract Internet users to its website for commercial gain by creating a likelihood of confusion with regard to Complainant’s mark and the source, sponsorship, affiliation, or endorsement of Respondent’s website by Complainant. Respondent resolves the disputed domain name to a website offering links to Complainant’s websites and the websites of its competitors in the car rental industry. Accordingly, the Panel finds that Respondent registered and uses the <enterprisy.com> domain name in bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent was well aware of Complainant’s existence and Complainant’s rights in the ENTERPRISE mark when it registered the <enterprisy.com> domain name. While panels have traditionally declined to find bad faith based upon constructive knowledge, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the ENTERPRISE mark when it registered the disputed domain name and concludes that Respondent registered the domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds that 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 <enterprisy.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 18, 2012
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