Enterprise Rent-A-Car Company v. Michael Krause d/b/a Dolphini Networks
Claim Number: FA0611000841900
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki
L. Little, of Schultz & Little, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <carenterpriserents.com>, registered with Enom, Inc.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 13, 2006; the National Arbitration Forum received a hard copy of the Complaint on November 16, 2006.
On November 14, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <carenterpriserents.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 November 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 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@carenterpriserents.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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." 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. Respondent’s
<carenterpriserents.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <carenterpriserents.com> domain name.
3. Respondent registered and used the <carenterpriserents.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, has been
providing vehicle rental, leasing and sales services under the
Respondent registered the <carenterpriserents.com> domain name on July 22, 2006 and is using it to maintain a commercial web directory with links to Complainant’s competitors in the car rental industry.
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 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 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.
Complainant has sufficiently demonstrated its rights in the
Respondent’s <carenterpriserents.com> domain
name wholly incorporates Complainant’s ENTERPRISE mark and adds the terms “car”
and “rents,” both of which describe Complainant’s car rental business. In Am. Int’l Group, Inc. v. Ling Shun
Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003), the panel found that the
respondent’s addition of the term “assurance” to the complainant’s AIG mark did
not sufficiently differentiate the domain name from the mark because the
appended term related directly to the complainant’s business. In this case as well,
Respondent has merely added terms that aptly described Complainant’s business
under a registered mark.
Accordingly, the Panel finds that the <carenterpriserents.com>
domain name is confusingly similar to the
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant maintains that Respondent does not have rights
to or legitimate interests in the disputed domain name. Complainant has the initial burden of proof
in establishing that Respondent has no rights or legitimate interests in the
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden then shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii).
See Document Tech., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270
(WIPO Jun. 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the
Complainant prove the presence of this element (along with the other two), once
a Complainant makes out a prima facie showing, the burden of production
on this factor shifts to the Respondent to rebut the showing by providing
concrete evidence that it has rights to or legitimate interests in the Domain
Name.”); see also Hanna-Barbera
Productions, Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that
the complainant must first make a prima facie case that the respondent
lacks rights and legitimate interests in the disputed domain name under Policy
¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have
rights or legitimate interests in a domain name).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <carenterpriserents.com>
domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9,
2000) (finding that by not submitting a response, the respondent has failed to
invoke any circumstance which could demonstrate any rights or legitimate
interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that the respondents’ failure to respond can be
construed as an admission that they have no legitimate interest in the domain
names). However,
the Panel will now examine the record to determine if Respondent has rights or
legitimate interests under Policy ¶ 4(c).
Because the WHOIS information lists the domain name
registrant as “Michael Krause d/b/a Dolphini Networks,” and there is no other
evidence in the record suggesting that Respondent is commonly known by the disputed
domain name, the Panel finds that Respondent has not established rights or
legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Great S. Wood Preserving, Inc. v.
TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding
that the respondent was not commonly known by the domain name
<greatsouthernwood.com> where the respondent linked the domain name to
<bestoftheweb.com>); see also M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding
that the respondent was not commonly known by the <cigaraficionada.com>
domain name under Policy ¶ 4(c)(ii) based on the WHOIS
information and other evidence in the record).
Respondent’s <carenterpriserents.com> domain
name, which is confusingly similar to Complainant’s
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has registered and is using the <carenterpriserents.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because it is diverting
Internet users seeking Complainant’s rental car services to a website providing
links to competing rental car services.
The Panel infers that Respondent receives click-through fees for each
consumer it diverts to other websites.
As a result, Respondent is taking advantage of the confusing similarity
between Complainant’s
Respondent’s registration and use of the <carenterpriserents.com>
domain name to operate a commercial search engine with links to the competitors
of Complainant also suggests bad faith registration and use according to Policy
¶ 4(b)(iii). In Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003), the panel found that the respondent had
registered and used the <euro-disney.com> domain name in bad faith
pursuant to Policy ¶ 4(b)(iii) because it resolved to a website promoting a
competing theme park. Because
Respondent’s website also resolves to a website promoting goods competing with
Complainant, Respondent appears to be disrupting Complainant’s business
under the
The Panel concludes that Complainant has 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 <carenterpriserents.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: December 29, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page