Enterprise Holdings, Inc. v. DSTR Acquisition VII, LLC
Claim Number: FA1212001475086
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is DSTR Acquisition VII, LLC (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprises.biz>, registered with DOMAIN.COM, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 10, 2012; the National Arbitration Forum received payment on December 10, 2012.
On December 11, 2012, DOMAIN.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <enterprises.biz> domain name is registered with DOMAIN.COM, LLC and that Respondent is the current registrant of the name. DOMAIN.COM, LLC has verified that Respondent is bound by the DOMAIN.COM, LLC 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 December 12, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2013 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@enterprises.biz. Also on December 12, 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 January 9, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is Enterprise Holdings, Inc. who lists its address as St. Louis, MO, USA. Complainant is the owner of the ENTERPRISE mark(s) which it began using at least as early as 1974. Complainant’s mark is internationally recognized in the vehicle rental business and Complainant is the largest car rental provider to international travelers visiting North America. Complainant operates its business in real space at various locations throughout the world and in cyberspace at its official website, <enterprise.com>.
Respondent is DSTR Acquisition VII,LLC who lists its address as Vancouver, WA, USA. The <enterprises.biz> domain name was registered on March 27, 2002.
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 bases its rights on registrations of the ENTERPRISE mark, which Complainant uses in its business of automotive repairs and short-term rental/leasing of automobiles and trucks. See, e.g., USPTO Reg. No. 1,343,167 registered on June 18, 1985. The Panel finds that Complainant’s USPTO registration satisfies its showing of rights under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant further contends that Respondent’s <enterprises.biz> domain name is confusingly similar to Respondent’s mark because it fully incorporates and misspells Complainant’s ENTERPRISE mark. The Panel notes that in addition to the term “enterprises” the domain name features the generic top-level domain (“gTLD”) “.biz.” The Panel further notes that while it is possible “enterprises” is a misspelling of the ENTERPRISE mark, it is also possible Respondent meant to pluralize the term “enterprise.” Regardless of the interpretation the Panel finds that the domain name is not sufficiently distinct from the ENTERPRISE mark. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)). The Panel thus finds that Complainant has met its required showings under Policy ¶ 4(a)(i); Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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). The Complainant has met this burden.
Complainant contends that Respondent is not commonly known by the disputed domain name, as evidenced by the fact that Complainant has never licensed or otherwise permitted Respondent to use the ENTERPRISE mark in connection with any domain name. The Panel notes that the WHOIS information for the <enterprises.biz> domain name lists “DSTR Acquisition VII, Inc.” as the registrant of the domain name. The Panel finds that this evidence shows that Respondent is not commonly known by <enterprises.biz> domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant next argues that Respondent is not providing a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the mark. Complainant claims that Respondent is using the disputed domain name to resolve to a website which provides hyperlinks to car rental services, including Complainant’s websites and Complainant’s competitors. Complainant claims that when Internet users click any of the links on the resolving website, they are taken to another website which features more descriptive hyperlinks to both Complainant’s and Complainant’s competitors websites. The Panel notes that both content pages of the <enterprises.biz> domain name provided by Complainant illustrate that the domain name is being used to host an array of hyperlinks to related and competing business, including Complainant’s own website. See Complainant’s Exhibit 5. The Panel finds that the Respondent’s use of the domain name to profit through click-through hyperlinks is not a Policy ¶ 4(c)(i) bona fide offering, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant asserts that Respondent is using the disputed domain name to confuse Internet users into believing Complainant is affiliated or a sponsor of the disputed domain name. Complainant claims that Respondent set up the disputed domain name to gain click-through profits whenever confused Internet users used the hyperlinks on the website. Complainant argues that the confusing similarity between the domain name and Complainant’s mark (and Complainant’s registered domain names associated with the mark such) makes it clear that Respondent seeks to profit whenever Internet users mistakenly go to the <enterprises.biz> domain name instead of Complainant’s <enterprise.com> domain name. The Panel again notes that the content of the disputed domain name’s resolving websites is dominated by hyperlinks to websites controlled by both Complainant and Complainant’s competitors. See Complainant’s Exhibit 6.
The Panel finds that Respondent has registered and is using the <enterprises.biz> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be misled to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprises.biz> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 22, 2013
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