Enterprise Rent-A-Car Company v. Kraus Tomasz c/o IT Developers s.c.Tomasz Kraus, ukasz Haluch
Claim Number: FA0702000908579
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 <enterprise-car-rentall.info>, registered with OVH SARL.
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 February 20, 2007, a Polish language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 12, 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@enterprise-car-rentall.info 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Polish language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <enterprise-car-rentall.info> domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterprise-car-rentall.info> domain name.
3. Respondent registered and used the <enterprise-car-rentall.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a leader in
the vehicle rental industry. In
connection with the provision of these services, Complainant has registered a
number of trade and service marks with the United States Patent and Trademark
Office (“USPTO”) including the
Respondent registered the disputed domain name
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 asserts rights in the
Complainant further alleges that
Respondent’s <enterprise-car-rentall.info>
domain name is confusingly similar to Complainant’s ENTERPRISE mark. Respondent’s disputed domain name contains
Complainant’s mark in its entirety and adds two hyphens, the words “car” and
“rentall,” and the generic top-level domain (“gTLD”) “.info.” The words “car” and “rentall” are generic
terms that obviously relate to Complainant’s business. “Rentall” is a misspelling of the word
“rental,” executed by adding an additional “l.”
The Panel finds that the addition of punctuation such as hyphens, the
generic, descriptive words “car,” the misspelled variation “rentall,” and the
gTLD “.info” is not sufficient to establish distinctiveness in the domain name
pursuant to Policy ¶ 4(a)(i). See Isleworth
Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made a prima facie case in support for its
allegations, the burden shifts to Respondent to set forth evidence indicating
that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). See Compagnie Generale des
Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Respondent’s disputed domain name resolves to a website
featuring links to commercial, third-party websites some of which directly
compete with Complainant’s business.
Respondent presumably receives “click-through” revenue for each
misdirected Internet user. The Panel
finds that Respondent’s use is neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use in accordance with Policy ¶
4(c)(iii). See TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that
the respondent’s diversionary use of the complainant’s marks to send Internet
users to a website which displayed a series of links, some of which linked to
the complainant’s competitors, was not a bona fide offering of goods or
services); see also 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).
Complainant alleges that Respondent is not associated with
Complainant’s business nor authorized to use Complainant’s marks in any
way. A review of Respondent’s WHOIS
information reveals that the registrant of the <enterprise-car-rentall.info> domain name is “Kraus Tomasz c/o IT Developers
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
featuring links to websites that directly compete with Complainant’s
business. The Panel finds that
Respondent’s use is a disruption of Complainant’s business pursuant to Policy ¶
4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO
Respondent’s disputed domain name currently resolves to a
website featuring links to commercial, third-party competing websites,
presumably with the intent of garnering “click-through” advertising
revenue. The Panel finds that
Respondent’s use constitutes an attraction for commercial gain and is evidence
of registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See
Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
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 <enterprise-car-rentall.info> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 23, 2007
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