Enterprise Rent-A-Car Company v. Keyword Marketing, Inc.
Claim Number: FA0702000918604
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 <enterprisescars.com> registered with
Capitoldomains, LLC.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 15, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 20, 2007.
On February 15, 2007, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <enterprisescars.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name. Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, LLC 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 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 14, 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@enterprisescars.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 20, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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
<enterprisescars.com> domain
name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisescars.com> domain name.
3. Respondent registered and used the <enterprisescars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, holds several trademark registrations for the ENTERPRISE mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 1,343,167 issued June 18, 1985), which have been used in connection with vehicle rental and leasing services. Complainant has used the term “cars” and “car” in conjunction with its rental services. Furthermore, Complainant also registered the <enterprise.com> domain name on June 1, 1998 to promote Complainant’s vehicle rental services online.
Respondent, Keyword Marketing, Inc., registered the <enterprisescars.com> domain name on January 5, 2006. Respondent’s website offers third-party links to other car rental and car sales sites, including links to the sites of Complainant’s competitors. Additionally, Respondent has been the respondent in prior UDRP cases in which the domain names were transferred.
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 <enterprisescars.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark pursuant to Policy ¶ 4(a)(i), because Respondent’s domain name contains Complainant’s mark in its entirety, adds the word “car,” which is a specific reference to Complainant’s car rental business, and adds the letter “s.” The addition of a word and the letter “s” in the disputed domain can still render the mark confusingly similar pursuant to Policy ¶ 4(a)(i). Furthermore, the addition of a top-level domain “.com” does not avoid a finding of confusing similiarity under Policy ¶ 4(a)(i). See 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); see also Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
The Panel finds that the Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <enterprisescars.com> 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). Because of Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. 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 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”). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <enterprisescars.com>
domain name. The WHOIS
information identifies Respondent as “Keyword Marketing Inc.,” and Complainant
has alleged that Respondent has no rights or legitimate interests in the
Respondent is using the <enterprisescars.com> domain name to attract Internet users to a website that offers links to other car rental and car sales websites, including links to Complainant’s competitors. Presumably, Respondent receives referral fees for each redirected Internet user. Thus, Respondent’s use of the domain name to redirect Internet users to competitor websites, presumably for commercial gain, does not constitute 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). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <enterprisescars.com>
domain name to redirect Internet users to a website that displays links to
Complainant’s competitors. This use of
the disputed domain name is likely to disrupt Complainant’s business by
diverting business away from Complainant.
Therefore, the Panel finds that Respondent’s registration and use of the
<enterprisescars.com> domain name constitutes bad
faith pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad
faith by attracting Internet users to a website that competes with the complainant’s
business); see also Travant Solutions,
Inc. v. Cole, FA 203177 (Nat. Arb. Forum
Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith,
pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a
competitor of Complainant . . . .”).
Respondent’s use of the <enterprisescars.com> domain name, which is
confusingly similar to Complainant’s
Respondent’s registration and use of the <enterprisescars.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(ii) because Respondent has a bad-faith pattern of registering trademark-related domain names. See Metro. Life Ins. Co. v. Keyword Mktg., Inc., FA 874259 (Nat. Arb. Forum Feb. 6, 2007); see also The Pillsbury Co. v. Keyword Mktg., Inc., FA 780315 (Nat. Arb. Forum Oct. 6, 2006). The Panel finds that such registration and use of the disputed domain name consitutes bad faith pursuant to Policy ¶ 4(b)(ii). See Sony Kabushiki Kaisha v. Anderson, FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a pattern of registering domain names in bad faith pursuant to Policy ¶ 4(b)(ii) when the respondent previously registered domain names incorporating well-known third party trademarks); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting).
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 <enterprisescars.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 28, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum