Enterprise Holdings, Inc. v. shilei c/o shilei
Claim Number: FA1412001596346
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is shilei c/o shilei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecarshar.com>, registered with Pdr Ltd. D/B/A Publicdomainregistry.Com.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 22, 2014; the National Arbitration Forum received payment on December 22, 2014.
On December 23, 2014, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by e-mail to the National Arbitration Forum that the <enterprisecarshar.com> domain name is registered with Pdr Ltd. D/B/A Publicdomainregistry.Com and that Respondent is the current registrant of the name. Pdr Ltd. D/B/A Publicdomainregistry.Com has verified that Respondent is bound by the Pdr Ltd. D/B/A Publicdomainregistry.Com 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 January 5, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 2015 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@enterprisecarshar.com. Also on January 5, 2015, 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 31, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kenneth L. Port 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
Complainant claims to own the ENTERPRISE CARSHARE mark through trademark registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 4,273,517, registered Jan. 8, 2013). Complainant uses the mark in furtherance of vehicle rental and leasing services.
Complainant also claims that the <enterprisecarshar.com> domain name is confusingly similar to the ENTERPRISE CARSHARE mark as the domain name merely removes the letter “e” from CARSHARE. Complainant further notes that the name removes the space between the two-word mark, and affixes the generic top-level domain (“gTLD”) “.com,” but claims both those alterations are irrelevant to the confusing similarity analysis.
Complainant further alleges that the Respondent has no rights or legitimate interests in the domain name <enterprisecarshar.com> and has registered it and is using it in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Respondent registered the domain name <enterprisecarshar.com> and that this domain name is confusingly similar if not identical to Complainant’s registered trademark ENTERPRISE CARESHARE. The Respondent has no rights or legitimate interests in or to the domain name and has registered and is using it 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. Pursuantly, 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’s registration with the USPTO sufficiently demonstrates its rights in and to the ENTERPRISE CARSHARE mark for purposes of Policy ¶ 4(a)(i), despite Respondent’s purported residence outside of the United States. See Homer TLC, Inc. v. Song Bin, FA 1505218 (Nat. Arb. Forum July 30, 2013) (“Complainant’s USPTO registration sufficiently establishes its rights in the HOME DEPOT mark under Policy ¶4(a)(i), despite the fact Respondent resides outside of the United States.”).
The <enterprisecarshar.com> domain name is confusingly similar to the ENTERPRISE CARSHARE mark pursuant to Policy ¶ 4(a)(i) as the domain name incorporates the mark in full less a single letter and adds a non-distinguishing gTLD while omitting the irreproducible space between the two-word mark.
Therefore, the Panel finds that the domain name is confusingly similar if not identical to Complainant’s registered trademark ENTERPRISE CARESHARE and in violation of Policy ¶ 4(a)(i).
Respondent has no rights or legitimate interests in the disputed domain name. Neither the WHOIS record nor the resolving website give any indication that Respondent is known by the <enterprisecarshar.com> domain name. The WHOIS record lists “shilei c/o shilei” as registrant. Prior panels have looked to the available evidence, notably the WHOIS record, to discern whether the respondent is commonly known by the disputed domain name. 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). As the record before the Panel provides no basis to deem Respondent commonly known by the <enterprisecarshar.com> domain name, the Panel finds in favor or Complainant with regards to Policy ¶ 4(c)(ii).
The disputed domain name resolves to a website containing related links such as “Car Rental Companys,” “Enterprise Rent a Car,” and “Servicemaster.” See Compl., at Attached Ex. 6. Complainant argues that Respondent cannot demonstrate rights in the domain name by redirecting users to links offering car share services relating to Complainant and its competitors. Respondent’s use of the disputed domain name to promote services related to, competing with, and unrelated to Complainant, likely in connection with pay-per-click fees, does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use as detailed in Policy ¶¶ 4(c)(i) and (iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors.
The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
The disputed domain name appears to resolve to a pay-per-click website that contains links related to and competing with Complainant’s car rental services. As Respondent likely generates referral revenue from the linked pages, Respondent is using the disputed domain name in hopes of confusing and misdirecting users so as to profit from users’ mistaken association. Complainant maintains that such action falls squarely within the parameters of Policy ¶ 4(b)(iv) bad faith and this Panel agrees. The disputed domain name resolves to promote links such as “Car Rental Companys,” “Enterprise Rent a Car,” and “Servicemaster.” See Compl., at Attached Ex. 6. As Complainant has demonstrated that the disputed domain name resolves to promote links to Complainant as well as competitors, and Respondent likely profits from the misdirection, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Further, the <enterprisecarshar.com> domain name is a typosquat of the ENTERPRISE CARSHARE mark, which is evidence bad faith. Prior panels have determine that typosquatting, which is identified by the registration of a misspelled version of another’s mark, is emblematic of bad faith under the Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use”). As the <enterprisecarshar.com> domain name differs from the ENTERPRISE CARSHARE mark by a single omitted letter, the Panel concludes Respondent has engaged in typosquatting behavior and finds that such conduct serves to further demonstrate Respondent’s bad faith registration and use of the domain name.
Finally, Respondent registered the disputed domain name with knowledge of Complainant and its rights in the ENTERPRISE CARSHARE mark as the disputed landing page includes a link to Complainant’s legitimate webpage and incorporates a misspelled version of the mark in the domain name itself. Although previous panels have declined to find evidence of bad faith based solely on constructive knowledge, panels have found Policy ¶ 4(a)(iii) bad faith where the circumstances support an inference of actual knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Nat. Arb. Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Based on the similarity of the disputed domain name to the ENTERPRISE CARSHARE mark, and the appearance of a link directing users to Complainant’s legitimate website, the Panel concludes that Respondent was familiar with Complainant and the ENTERPRISE CARSHARE mark at the time of domain name registration and did or should have had actual notice of Complainants rights in and to the trademark ENTERPRISE CARESHARE.
Accordingly, the Panel finds that this amounts to additional evidence of Respondent’s bad faith registration pursuant to 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 <enterprisecarshar.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: February 2, 2015
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