Enterprise Rent-A-Car Company v. Marco Costa
Claim Number: FA0702000908572
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 <carenterpriserent.info>, registered with Network Solutions, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 1, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 5, 2007.
On February 1, 2007, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <carenterpriserent.info> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 February 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 26, 2007 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@carenterpriserent.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 7, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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
<carenterpriserent.info>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <carenterpriserent.info> domain name.
3. Respondent registered and used the <carenterpriserent.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a well known
provider of vehicle rental, leasing and sales services. Complainant holds registrations with the
United States Patent and Trademark Office (“USPTO”) for the
Respondent registered the <carenterpriserent.info>
domain name on April 15, 2006.
Respondent is using the disputed domain to redirect Internet users to
its website.
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 established rights in the
Respondent’s <carenterpriserent.info>
domain name is confusingly similar to Complainant’s marks. The disputed domain name includes the word
“enterprise” in its entirety, which is present in both of Complainant’s marks,
plus the words “car” and “rent” which are features of Complainant’s ENTERPRISE
RENT-A-CAR mark. Merely reordering the
terms does not distinguish the disputed domain name from Complainant’s
marks. Additionally, the terms “car” and
“rent” are descriptive of Complainant’s business. The Panel finds that the disputed domain name
is confusingly similar to Complainant’s marks pursuant to Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc.,
D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly
incorporates a Complainant’s registered mark is sufficient to establish identity
[sic] or confusing similarity for purposes of the Policy despite the addition
of other words to such marks.”); see also
Down E. Enter. Inc. v. Countywide Commc’ns, FA 96613 (Nat. Arb. Forum Apr. 5,
2001) (finding the domain name <downeastmagazine.com> confusingly similar
to the complainant’s common law mark DOWN EAST, THE MAGAZINE OF MAINE).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant’s assertion that Respondent lacks rights or legitimate interests in the disputed domain name creates a prima facie case pursuant to the Policy. Once a prima facie case has been established by Complainant, the burden shifts to Respondent to demonstrate that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel views Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests in the disputed domain name. Nonetheless, the Panel will evaluate the available evidence to determine whether Respondent has rights or legitimate interests as contemplated by Policy ¶ 4(c). 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 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).
The Panel finds that Respondent is not using the disputed
domain name in connection with a bona
fide offering of goods or services or a legitimate noncommercial or fair
use as contemplated by Policy ¶¶ 4(c)(i) and
(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating
that the respondent’s use of the complainant’s entire mark in domain names
makes it difficult to infer a legitimate use); 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).”).
There is no available evidence
that Respondent is commonly known by the <carenterpriserent.info>
domain name. Respondent’s WHOIS
information identifies Respondent as “Marco Costa” a name with no obvious
relationship to the disputed domain name.
Further, Respondent is not affiliated with or sponsored by Complainant
in any way. The Panel finds that
Respondent is not commonly known by the disputed domain name and has not
established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See 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); 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.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s inclusion of Complainant’s marks in its domain
name suggests that Respondent registered and is using the disputed domain name
in bad faith. Because the <carenterpriserent.info>
domain name is confusingly similar to
Complainant’s marks, Internet users seeking Complainant’s genuine website may
instead find themselves misdirected to Respondent’s website. Presumably, Respondent is profiting from this
confusion. The Panel finds that such use
is evidence of 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 State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum
Sept. 12, 2000) (finding bad faith where the respondent registered the domain
name <bigtex.net> to infringe on the complainant’s goodwill and attract
Internet users to the respondent’s website).
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 <carenterpriserent.info> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: March 13, 2007
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