Enterprise Rent-A-Car Company v. DomainBaron.com (this domain is for sale)
Claim Number: FA0702000922036
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 <enterprisecars.net>, registered with Tucows 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.
The Honorable Charles K. McCotter, Jr. (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 22, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 27, 2007.
On February 23, 2007, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <enterprisecars.net> domain name is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows 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 March 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 25, 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@enterprisecars.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 28, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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
<enterprisecars.net> domain
name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecars.net> domain name.
3. Respondent registered and used the <enterprisecars.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise
Rent-A-Car Company, has used the
Respondent, DomainBaron.com (this domain is for sale), registered the <enterprisecars.net> domain name on June 21, 2006. Respondent is using the disputed domain name to display hyperlinks that lead to the websites of Complainant’s competitors.
On November 14, 2006, a National Arbitration Forum panel
issued an order requiring Respondent to transfer registration of the domain
names <enterpriseautorentals.net>, <enterpriseautos.com>, and
<enterpriserentals.net> to Complainant.
The panel found that these domain names were confusingly similar to
Complainant’s
Complainant indicates that Respondent has registered seventeen (17) other domain names including Complainant’s ENTERPRISE mark with the Canadian registry that violate Complainant’s rights and interests. However, the registrations of those domain names are not being challenged in this proceeding.
On June 30, 2001, the World Intellectual Property Organization (“WIPO”) issued an order requiring Respondent to transfer registrations of thirty-one (31) domain names to the complainant in that proceeding. The panel in that case found that Respondent registered the confusingly similar domain names in bad faith without holding any rights or legitimate interests in the domain names. See Government of Canada v. David Bedford a.k.a. DomainBaron.com, D2001-0470 (WIPO June 30, 2001).
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’s registration of its
Furthermore, the Panel finds that Respondent’s <enterprisecars.net> domain name is
confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <enterprisecars.net> 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant has alleged that Respondent is not commonly
known by the <enterprisecars.net>
domain name. The WHOIS information
identifies Respondent as “DomainBaron.com (this
domain is for sale),” and Complainant has alleged that Respondent is not
licensed or authorized to use Complainant’s
Respondent is using the <enterprisecars.net>
domain name to display hyperlinks that lead to the websites of
Complainant’s competitors. Such use 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 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 Computerized
Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2004) (“Respondent’s
appropriation of the SAFLOK mark to market products that compete with
Complainant’s goods does not constitute a bona fide offering of goods and
services”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has demonstrated a bad-faith pattern of
registering and using trademark-related domain names, including other domain
names containing Complainant’s
Respondent is using the <enterprisecars.net> domain name to display hyperlinks that lead to the websites of Complainant’s competitors. This is likely to disrupt Complainant’s business by diverting potential customers looking for vehicle rental, leasing, and sales services away from Complainant. Therefore, the Panel finds that Respondent’s registration and use of the disputed domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Svcs. c/o Corporate Mgmt., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s <enterprisecars.net>
domain name, which is confusingly similar to Complainant’s
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 <enterprisecars.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 2, 2007
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