Enterprise Holdings, Inc. v. SearchGuide Inc. c/o Sean Thorne
Claim Number: FA1407001570080
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is SearchGuide Inc. c/o Sean Thorne (“Respondent”), New Hampshire, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <enterprisecarsals.com> and <enterptize.com>, registered with GoDaddy.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 16, 2014; the National Arbitration Forum received payment on July 16, 2014.
On July 16, 2014, GODADDY.COM, LLC confirmed by email to the National Arbitration Forum that the <enterprisecarsals.com> and <enterptize.com> domain names are registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.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 July 17, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 6, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@enterprisecarsals.com, postmaster@enterptize.com. Also on July 17, 2014, 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 August 11, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns the ENTERPRISE CAR SALES mark for vehicle dealership services and the ENTERPRISE mark for short-term vehicle rental and automotive dealership services. Complainant licenses these marks to Enterprise Car Sales and Enterprise Rent-a-Car operating companies, respectively. Both marks are registered with the U.S. Patent and Trademark Office.
Complainant contends that the disputed domain name <enterprisecarsals.com> is confusingly similar to its ENTERPRISE CAR SALES mark, and that the disputed domain name <enterptize.com> is confusingly similar to its ENTERPRISE mark, both differing only by the introduction of minor typographical errors and the addition of the “.com” top-level domain.
Complainant contends further that Respondent has no rights or legitimate interests in the disputed domain names, on the grounds that Respondent is not known by the domain names, has not been licensed to use Complainant’s marks, and is using the domain names for web pages comprised of pay-per-click links to services relating to Complainant and its competitors.
Finally, Complainant contends that the disputed domain names were registered and are being used in bad faith. Complainant asserts that Respondent’s registration and use of domain names incorporating Complainant’s marks for pay-per-click web pages designed to exploit confusion with the marks demonstrate Respondent’s bad faith. Complainant characterizes Respondent’s conduct as “typosquatting,” and notes that the web pages include links to the websites of Complainant’s licensees, demonstrating Respondent’s awareness of Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is identical or confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and have been used in bad faith.
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.”).
Each of the disputed domain names incorporates one of Complainant’s registered trademarks, with the introduction of only minor typographical errors. Neither these alterations nor the addition of the “.com” top-level domain is sufficient to distinguish the domain names from Complainant’s marks. See, e.g., Enterprise Holdings, Inc. v. Enterptise Online Services, Ltd., FA 1444232 (Nat. Arb. Forum June 14, 2012) (finding <enterptise.com> confusingly similar to ENTERPRISE); Enterprise Holdings, Inc. v. Kyunghwa Park, FA 1404559 (Nat. Arb. Forum Oct. 26, 2011) (finding <enterprizecar.com> confusingly similar to ENTERPRISE). The Panel finds that the disputed domain names are confusingly similar to marks in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Each of the disputed domain names incorporates Complainant’s mark without authorization, and apparently has been used solely to display pay-per-click advertising keyed to Complainant’s marks. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of domain name that are nearly identical to Complainant’s marks, together with the use of those domain names to link to commercial websites that compete with Complainant, is indicative of bad faith under paragraph 4(b)(iv). See, e.g., Enterprise Holdings, Inc. v. Enterptise Online Services, Ltd., supra (finding bad faith under similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarsals.com> and <enterptize.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 11, 2014
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