Enterprise Rent-A-Car Company v. Jason Cox
Claim Number: FA0610000811685
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 Jason Cox (“Respondent”), 312 Laguna Seca Ln., Albuquerque, NM, 87104.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <1enterpriserentacar33.info>, registered with Moniker Online Services Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically October 2, 2006; the National Arbitration Forum received a hard copy of the Complaint October 5, 2006.
On October 4, 2006, Moniker Online Services Inc. confirmed by e-mail to the National Arbitration Forum that the <1enterpriserentacar33.info> domain name is registered with Moniker Online Services Inc. and that Respondent is the current registrant of the name. Moniker Online Services Inc. verified that Respondent is bound by the Moniker Online Services Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 26, 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@1enterpriserentacar33.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 2, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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:
1. The domain name that Respondent registered, <1enterpriserentacar33.info>, is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent has no rights to or legitimate interests in the <1enterpriserentacar33.info> domain name.
3. Respondent registered and used the <1enterpriserentacar33.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is engaged in the vehicle rental, leasing, and sales business. Complainant registered the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,343,167 issued June 18, 1985), and has used the mark continuously in connection with its business since then. In addition, Complainant registered the domain name <enterpriserentacar.com> on August 20, 1996 and the domain name <enterprise.com> on June 1, 1998 in connection with its business.
Respondent registered the <1enterpriserentacar33.info> domain name December 21, 2005. Internet users who access this domain name are directed to a website that features vehicle rental services in competition with Complainant.
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 will draw such inferences as the Panel 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
Complainant established using extrinsic proof in this proceeding that it has rights in the ENTERPRISE mark, pursuant to Policy ¶ 4(a)(i), through 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.”).
The disputed domain name that Respondent registered, <1enterpriserentacar33.info>, is confusingly similar to Complainant’s ENTERPRISE mark because it incorporates Complainant’s mark along with the numerals “1,” “4” and “33,” the terms “rent,” “a,” and “car,” and the top-level domain “.com.” The Panel finds that these additions to Complainant’s registered mark do not negate the confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Am. Online Inc. v. Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in the domain name <4icq.com> does nothing to deflect the impact on the viewer of the mark ICQ and is therefore confusingly similar); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). Additionally, since all domain names require a top-level domain, the addition of “.com” to Complainant’s mark fails to distinguish Respondent’s domain name from the mark. See Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights to and legitimate interests in the mark contained in its entirety within the disputed domain name. Complainant alleged that Respondent has no such rights or legitimate interests in the <1enterpriserentacar33.info> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
The disputed domain name, <1enterpriserentacar33.info>,
is confusingly similar to Complainant’s ENTERPRISE mark, and directs users to a
website featuring several references to Complainant’s ENTERPRISE mark and links
to competitors’ websites. The Panel
presumes that Respondent receives click-through fees in return for diverting
Internet traffic to these websites.
Respondent’s use of Complainant’s ENTERPRISE mark in its domain name and
on its website may confuse Internet users about the relationship between
Complainant and Respondent. Complainant
asserts that no such relationship exists.
The Panel determines that Respondent registered the <1enterpriserentacar33.info>
domain name to gain financially by diverting Internet users interested in
Complainant’s website to those of Complainant’s competitors. Such use of the domain name is not in
connection with a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). See
WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12,
2003) (finding that the respondent’s use of the
disputed domain name to redirect Internet users to websites unrelated to the
complainant’s mark, websites where the respondent presumably receives a
referral fee for each misdirected Internet user, was not a bona fide
offering of goods or services as contemplated by the Policy); see also Bank
of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30,
2003) (“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant asserts that it is not
associated with Respondent, and that it has not authorized Respondent to use
its mark. The WHOIS database for the <1enterpriserentacar33.info>
domain name contains no information implying that
Respondent is commonly known by that name and Respondent has not offered
affirmative proof that Respondent is commonly known by the <1enterpriserentacar33.info>
domain name.
For the above reasons, the Panel
finds that Respondent has no rights or legitimate interests in this domain name
under Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests
where (1) the respondent is not a licensee of the complainant; (2) the
complainant’s prior rights in the domain name precede the respondent’s
registration; (3) the respondent is not commonly known by the domain name in
question); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information
implies that Respondent is ‘commonly known by’ the disputed domain name” as one
factor in determining that Policy ¶ 4(c)(ii) does not apply).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant also alleges that Respondent acted in bad faith in registering and using a domain name containing Complainant’s protected mark. Respondent uses the <1enterpriserentacar33.info> domain name to present Internet users with links to websites operated by Complainant’s competitors, presumably in return for payments. Because the <1enterpriserentacar33.info> domain name is confusingly similar to Complainant’s ENTERPRISE mark, Internet users may mistakenly believe that Respondent’s domain name is affiliated with Complainant. Such use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Moreover, Respondent’s website
contains links to websites offering products in direct competition with
Complainant. Respondent’s domain name incorporates Complainant’s mark in its
entirety. The Panel finds that
Respondent’s use of Complainant’s mark to divert Internet users to those who
compete with Complainant amounts to disruption of Complainant’s business under Policy
¶ 4(b)(iii). See
Puckett v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)); see also EBAY, Inc.
v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent
registered and used the domain name <eebay.com> in bad faith where the
respondent has used the domain name to promote competing auction sites).
The Panel finds that Complainant satisfied 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 <1enterpriserentacar33.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 14, 2006.
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