Enterprise Holdings, Inc. v. song qiuxiang
Claim Number: FA1703001723481
Complainant is Enterprise Holdings, Inc. ("Complainant"), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is song qiuxiang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ehi9.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on March 24, 2017; the Forum received payment on March 24, 2017.
On March 25, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <ehi9.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 March 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 17, 2017 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@ehi9.com. Also on March 27, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
Complainant is a vehicle rental service provider that serves customers in United States, Canada, Ireland, Germany, Spain and the United Kingdom. Complainant states that it owns and uses the EHI trademark, an initialism for its name, and that the domain name <ehi.com> resolves to a home page for Complainant. Complainant owns United States and European Community trademark registrations for the EHI mark, both of which issued in 2010.
Respondent registered the disputed domain name <ehi9.com> in November 2016. The domain name resolves to what Complainant describes as a "hard core porno web page." Complainant asserts that Respondent is not commonly known as EHI9, that Respondent has not been licensed or otherwise permitted to use Complainant's EHI mark, and that Respondent is deliberately using a domain name that is similar to Complainant's mark to attract Internet users to its website by creating a likelihood of confusion with the mark. Complainant characterizes Respondent's conduct as "typosquatting," pointing out that the number "9" key lies above the letter "i" key on a standard keyboard, so Internet users might mistakenly add a "9" when typing Complainant's <ehi.com> domain name.
Complainant contends on these grounds that the disputed domain name <ehi9.com> is confusingly similar to Complainant's EHI mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights, and that Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Panel further finds that Complainant has not proved that the disputed domain name was registered and is being 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(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.").
The disputed domain name <ehi9.com> combines Complainant's registered mark EHI with the number "9" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark for purposes of the Policy. See, e.g., Hammy Media, Ltd & xHamster IP Holdings Ltd v. Andrei Ivanov, FA 1701886 (Forum Dec. 7, 2016) (finding <xhamster9.com> confusingly similar to XHAMSTER); Wells Fargo & Co. v. Domains By Proxy - VSC Proxy Account / Virtual Services Corp., FA 1592280 (Forum Jan. 2, 2015) (finding <wellsfargo9.com> confusingly similar to WELLS FARGO); World Wrestling Entertainment, Inc. v. Rigen Wu, FA 1532821 (Forum Jan. 3, 2014) (finding <wwe9.com> confusingly similar to WWE). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, 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 name.
Finally, Complainant must show that the disputed domain name was registered and is being 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."
To have registered a domain name in bad faith, Respondent must have been aware of Complainant or its mark when it registered the domain name, and the registration must in some way have been targeted at Complainant or its mark. Vanity Shop of Grand Forks, Inc. v. Domain Administrator / Vertical Axis Inc., FA 1595932 (Forum Jan. 20, 2015); see also The Perfect Potion v. Domain Administrator, D2004-0743 (WIPO Nov. 6, 2004) (even where domain name is used for a pornographic website, bad faith requires "a deliberate intention . . . to ride on the back of the complainant's goodwill/trademark").
Respondent is located in China, and is using the disputed domain name for a website that appears to be targeted at a Chinese audience. There is no evidence of any connection between Respondent or its website and Complainant or Complainant's industry. Cf., e.g., Enterprise Holdings, Inc. v. Thompson Mart, No. 101119 (Czech Arb. Ct. Jan. 7, 2016) (finding bad faith in registration and use of <ehicars.com>, <ehirentalcars.com>, and similar domain names for websites promoting services competitive with those offered by complainant); Wells Fargo & Co. v. Domains By Proxy - VSC Proxy Account / Virtual Services Corp., supra (finding bad faith in registration and use of <wellsfargo9.com> to promote goods and services competitive with those offered by complainant); World Wrestling Entertainment, Inc. v. Rigen Wu, supra (finding bad faith in registration and use of <wwe9.com> for a website allowing viewers to watch unlicensed video material owned by complainant).
Respondent here is using the domain name for a purpose entirely unrelated to Complainant and its industry. Complainant's mark is just three letters long, and presumably is used for many purposes other than to identify Complainant. Complainant does not claim that the mark is famous, nor that it has ever been used in China. Furthermore, the Panel has reviewed the screenshot of Complainant's website furnished with the Complaint and finds no instances of the EHI mark, even in the domain name itself (the <ehi.com> domain name redirects traffic to <www.enterpriseholdings.com>).
The evidence available to the Panel does not support an inference that Respondent intentionally targeted Complainant or its mark, or that Respondent was even likely to have been aware of Complainant's mark at any time prior to the filing of the Complaint in this proceeding. The Panel therefore finds that Complainant has failed to meet its burden of proving that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <ehi9.com> domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: April 21, 2017
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