Enterprise Holdings, Inc. v. levesque, bruno
Claim Number: FA1602001661896
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is levesque, bruno (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprise.menu>, registered with Dynadot, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2016; the Forum received payment on February 20, 2016.
On February 22, 2016, Dynadot, LLC confirmed by e-mail to the Forum that the <enterprise.menu> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 February 22, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2016 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@enterprise.menu. Also on February 22, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Policy ¶ 4(a)(i)
Complainant has rights in the ENTERPRISE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,343,167, registered on June 18, 1985). Respondent’s <enterprise.menu> domain name is confusingly similar to the ENTERPRISE mark because it contains the entire mark along with the generic top-level domain (“gTLD”) “.menu.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <enterprise.menu> domain name as the available WHOIS information lists “levesque, bruno” as Registrant. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving domain name provides competitive click-through links and is used to offer the <enterprise.menu> domain name for sale.
Policy ¶ 4(a)(iii)
Respondent has demonstrated a pattern of bad faith registration and use of domain names through prior UDRP decisions decided against him. Respondent uses the <enterprise.menu> domain name in bad faith because the resolving domain name provides competitive click-through links and is used to offer the domain name for sale and because the disclaimer presented on the website does not mitigate bad faith. Respondent registered the <enterprise.menu> domain name in bad faith because he did so with actual knowledge of Complainant’s rights in the ENTERPRISE mark, as demonstrated by the use of the domain and the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., has rights in the ENTERPRISE mark through its registration with the USPTO (Reg. No. 1,343,167, registered on June 18, 1985). Respondent’s <enterprise.menu> domain name is confusingly similar to the ENTERPRISE mark.
Respondent, levesque, Bruno, registered the <enterprise.menu> domain name on June 4, 2014. Respondent is not commonly known by the <enterprise.menu> domain name as the available WHOIS information lists “levesque, bruno” as Registrant. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving domain name provides competitive click-through links and is used to offer the <enterprise.menu> domain name for sale.
Respondent has demonstrated a pattern of bad faith registration and use of domain names through prior UDRP decisions decided against him. Respondent uses the <enterprise.menu> domain name in bad faith. Respondent registered the <enterprise.menu> domain name in bad faith because he did so with actual knowledge of Complainant’s rights in the 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(f), 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 (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 has rights in the ENTERPRISE mark under Policy ¶ 4(a)(i) through registration with the USPTO. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <enterprise.menu> domain name is confusingly similar to the ENTERPRISE mark under Policy ¶ 4(a)(i) because it contains the entire mark along with the gTLD “.menu.”
Respondent is not commonly known by the <enterprise.menu> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use its ENTERPRISE mark. The WHOIS information lists “levesque, bruno” as Registrant. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (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).
Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the <enterprise.menu> domain name resolves to a page containing competitive click-through links and offering the domain name for sale. Complainant has provided evidence of links, such as “Car Rental at Lax,” “Dollar Car Rental Miami,” and “Cheap Car Rental Cars.” Complainant has also provided evidence that the domain is offered for sale at a price point of $799. See Disney Enters., Inc. v. Kamble, FA 918556 (Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”).
Respondent uses the <enterprise.menu> domain name in bad faith according to Policy ¶ 4(b)(i) because the resolving website is used to offer the domain name for sale. See Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale).
Respondent has demonstrated a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii) through prior UDRP decisions decided against him. See priceline.com LLC v. levesque, bruno FA 1625137 (Forum July 29, 2015 and Vangaurd Trademark Holdings USA LLC v. levensque, bruno FA 1550696 (Forum Apr. 25, 2014); see also TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Respondent uses the <enterprise.menu> domain name in bad faith according to Policy ¶ 4(b)(iv) because the resolving domain name provides competitive click-through links for which Respondent presumably receives click-through-fees. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Nor does Respondent’s disclaimer preclude a finding of bad faith use. See Auxilium Pharm., Inc. v. Patel, FA 642141 (Forum Apr. 6, 2006) (“Respondent’s use of a disclaimer on its website does not mitigate evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Respondent registered the <enterprise.menu> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the ENTERPRISE mark. See Bluegreen Corp. v. eGo, FA 128793 (Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprise.menu> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 2, 2016
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