Enterprise Rent-A-Car v. domains Ventures
Claim Number: FA0608000785534
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki L. Little, of Schultz & Little, L.L.P., 640 Cepi Drive, Suite A, Chesterfield, MO 63005-1221. Respondent is domains Ventures (“Respondent”), 136 Xiaoxue Road, Xiamen, Fujian 361001, CN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterpriseautosales.com>, registered with Moniker Online Services, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 5, 2006.
On September 5, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterpriseautosales.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 5, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 25, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@enterpriseautosales.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 29, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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." 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 makes the following assertions:
Complainant offers vehicle rental, leasing and sale services
to the public.
In connection with the promotion of these services, Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”), including the ENTERPRISE mark (Reg. No. 1,343,167, issued June 18, 1985).
Respondent registered the disputed domain name, <enterpriseautosales.com>, on December 9, 2003.
This domain name resolves to a website which displays numerous sponsored advertisements for third-party websites, many of which directly compete with the business of Complainant.
Respondent’s domain name is confusingly similar to Complainant’s ENTERPRISE mark.
Respondent does not have any rights or legitimate interests in this domain name.
Respondent registered and uses this domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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."
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 a 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.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the ENTERPRISE mark through its registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.” See also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”
Complainant contends that the <enterpriseautosales.com>
domain name is confusingly similar to its ENTERPRISE mark. The disputed domain name contains
Complainant’s mark in its entirety and merely adds the terms “auto” and “sales”
and the generic top-level domain (“gTLD”) “.com.” For purposes of Policy ¶ 4(a)(i), the affixation of terms that
obviously describe the business of a trademark holder does not distinguish the
disputed domain name from the mark.
Accordingly, the disputed domain name is confusingly similar to
Complainant’s registered mark. See Parfums Christian Dior v. 1 Netpower,
Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names
that added the descriptive words "fashion" or "cosmetics"
after a trademark were confusingly similar to the mark); see also Enter. Rent-A-Car Co. v.
Automart, FA 236577 (Nat. Arb. Forum Mar. 26, 2004) (finding the
domain <enterpriserental.com> to be confusingly similar to the ENTERPRISE
mark because it contained the mark in its entirety and added a term that merely
described the complainant’s business); see
further Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25,
2000) (finding that a top level domain name such as “.net” or “.com” does not
affect the domain name for purposes of determining whether it is identical or
confusingly similar to a competing mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name. Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden of making out a prima facie showing that Respondent lacks rights and legitimate interests in a disputed domain name. Once Complainant establishes such a prima facie showing, the burden shifts to Respondent to prove that it has rights or legitimate interests in the domain. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
Because
Complainant’s Submission constitutes a prima
facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).
See also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant has asserted that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
On the record before us, it is evident that Complainant has successfully established a prima facie showing through its uncontested assertions and evidentiary submissions.
Respondent’s failure to submit a Response in this proceeding therefore demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name. However, the Panel will nonetheless examine the record to determine if there is any basis for concluding that Respondent has rights or legitimate interest in the disputed domain name pursuant to Policy ¶ 4(c).
We begin by observing that, according to the WHOIS database, the registrant of the disputed domain name is “domain Ventures.” Taken together with the fact that there is no evidence in the record to suggest otherwise, it appears that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that a respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because that respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003): “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”
We also note that Complainant alleges, and Respondent does not deny, that the disputed domain name resolves to a website displaying numerous sponsored advertisements for third-party websites, many of which directly compete with the business of Complainant. The use of a confusingly similar domain name to direct Internet users to a website featuring advertisements for the websites of third-party competitors of Complainant does not amount to a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that a respondent’s use of a disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of that domain name).
The Panel thus finds that Policy ¶
4(a)(ii) has been satisfied.
Complainant alleges, without contravention from Respondent,
that Respondent registered and uses the disputed domain name in bad faith. The use of a confusingly similar domain name
to advertise commercially-oriented and auto-related content causes a likelihood
of confusion as to Complainant’s possible sponsorship of or affiliation with
the disputed domain name. Additionally,
owing to the nature of Respondent’s website, it may safely be presumed that
Respondent profits from the advertisements it displays on the resulting
website. Accordingly, Respondent has
registered and uses the domain name in bad faith pursuant to Policy ¶
4(b)(iv). See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb.
28, 2003) (finding that a respondent’s use of an infringing domain name to
redirect Internet users to banner advertisements constituted bad faith use of
the domain); see also Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. 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.’”
Finally under this heading, we must note that Respondent is charged with at least constructive knowledge of Complainant’s rights in its ENTERPRISE mark owing to its registration with the competent authorities in the United States, so that Respondent’s recent registration of a domain name confusingly similar to Complainant’s registered mark is, without more, evidence of Respondent’s bad faith registration and use of the disputed domain name within the compass of the Policy. Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002). See also Miller Brewing Co. v. km, FA 158252 (Nat. Arb. Forum Jul. 3, 2003).
For all of these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <enterpriseautosales.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 11, 2006
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