Enterprise Rent-A-Car Company v. Dana One LLC c/o Kevin Daste
Claim Number: FA0611000857651
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 <enterpricecarrental.com>, registered with Genuine Names, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 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@enterpricecarrental.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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
<enterpricecarrental.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterpricecarrental.com> domain name.
3. Respondent registered and used the <enterpricecarrental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent
registered the <enterpricecarrental.com>
domain name on
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
provides evidence of its federal trademark registrations for the
Respondent’s
disputed domain name consists of a common misspelling of Complainant’s
registered mark and adds the generic terms “car” and “rental,” as well as the
generic top-level domain (gTLD) “.com.” In Toronto-Dominion Bank
v. Karpachev, D2000-1571 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
According
to Policy ¶ 4(a)(ii), Complainant must initially demonstrate that Respondent
lacks rights or legitimate interests with regard to the disputed domain name.
Once Complainant sufficiently establishes a prima facie case, however,
the burden shifts to Respondent to demonstrate that it has rights or legitimate
interests in connection with the disputed domain name under Policy ¶
4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624
(WIPO Aug. 21, 2000) (holding that 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
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Based
upon the evidence on record, the Panel finds that Respondent is not commonly
known by the <enterpricecarrental.com>
domain name pursuant to Policy ¶ 4(c)(ii). Complainant contends that
Respondent is not associated with Complainant, and is not authorized by
Complainant to use the
Furthermore,
the evidence on record suggests that Respondent’s <enterpricecarrental.com> domain name resolves to a
website providing links to third-party websites that offer various car, truck,
watercraft, and property rental information, as well as advertisements of
Complainant’s competitors. The Panel also finds that Respondent
presumably receives referral fees for the posting of the aforementioned
advertisements on its website. In Charles Letts & Co. v.
Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006), the panel
found that the respondent’s use of a domain name that was confusingly similar
to the complainant’s mark to display links to the complainant’s competitors did
not constitute 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). Thus, in the instant case, the Panel finds that Respondent’s
use of the confusingly similar <enterpricecarrental.com>
domain name does not represent either 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).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
is using the confusingly similar disputed domain name to operate a website
containing links to competitors of Complainant’s car rental business. In Zee
TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006), the
panel found that the respondent engaged in bad faith registration and use by
using a domain name that was confusingly similar to the complainant’s mark to
offer links to third-party websites that offered services similar to those
offered by the complainant. Similarly, in State Fair of
Furthermore,
taking into consideration Respondent’s use of the disputed domain name to
divert Internet users to the websites of Complainant’s competitors, the Panel
finds that Respondent acquired and used the disputed domain name in bad faith
under Policy ¶ 4(b)(iii). In Puckett, Individually v. Miller,
D2000-0297 (WIPO
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterpricecarrental.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 12, 2007
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