Enterprise Rent-A-Car
Company v. Luba Benson c/o T.N.T. TerrificNTerry, Inc.
Claim Number: FA0705000980709
PARTIES
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 <enterpriserent-a-car.us>, registered
with Go
Daddy Software, Inc.
PANEL
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.
Honorable Karl V. Fink (Ret.), as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on May 9, 2007;
the Forum received a hard copy of the Complaint on May 14, 2007.
On May 10, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the Forum that the <enterpriserent-a-car.us> domain name is registered with Go Daddy
Software, Inc. and that Respondent is the current registrant of the
name. Go
Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution
Policy (the “Policy”).
On May 14, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 4, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On June 6, 2007, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed Honorable Karl V. Fink
(Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <enterpriserent-a-car.us> domain name is identical to Complainant’s ENTERPRISE RENT-A-CAR mark.
2.
Respondent does not have any rights or
legitimate interests in the <enterpriserent-a-car.us>
domain name.
3.
Respondent registered and used the <enterpriserent-a-car.us> domain name
in bad faith.
B. Respondent
Respondent did not respond to this
proceeding.
FINDINGS
Complainant, Enterprise
Rent-A-Car Company, provides vehicle rental, leasing and sales services. Complainant has registered the ENTERPRISE
RENT-A-CAR mark with the United States Patent and Trademark Office (“USPTO”) to
promote Complainant’s services (Reg. No. 2,371,192 issued July 25, 2000).
Respondent, Luba Benson c/o
T.N.T. TerrificNTerry, Inc., registered the <enterpriserent-a-car.us> domain name on September 1,
2006. Respondent is using the disputed
domain name to display hyperlinks advertising competing car rental services.
DISCUSSION
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(f), 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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
Previous panels
have held that Complainant holds rights in the ENTERPRISE RENT-A-CAR mark. See
Enter. Rent-A-Car Co. v. Language Direct, FA 306586 (Nat. Arb. Forum Oct.
25, 2004) (finding that Complainant, who registered the ENTERPRISE RENT-A-CAR
mark with the USPTO, successfully established rights in the mark). Generally, under Policy ¶ 4(a)(i),
registration of a mark with an appropriate governmental authority such as the
USPTO confers rights in that mark to Complainant. See
Enter. Rent-A-Car Co.
v. David Mizer Enters., Inc., FA 622122 (Nat.
Arb. Forum Apr. 14, 2006) (finding that the complainant’s
registration with the USPTO for the
Respondent’s <enterpriserent-a-car.us> domain name contains Complainant’s ENTERPRISE RENT-A-CAR mark in its entirety, but removes the space and adds the country-code top-level domain (“ccTLD”) “.us.” Since spaces are not permissible in domain names, and all domain names require a top-level domain, the Panel finds that the disputed domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Future Steel Holdings Ltd. v. Majercik, FA 224964 (Nat. Arb. Forum Mar. 15, 2004) (“The <steelmaster.us> domain name is identical to the STEEL MASTER mark. The only difference is the omission of the space between the words and the addition of the ccTLD “.us,” which does not significantly distinguish the domain name from the mark.”); see also Lifetouch, Inc. v. Fox Photographics, FA 414667 (Nat. Arb. Forum Mar. 21, 2005) (finding the respondent’s <lifetouch.us> domain name to be identical to the complainant’s LIFETOUCH mark because “[t]he addition of ‘.us’ to a mark fails to distinguish the domain name from the mark pursuant to the Policy”).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Complainant has alleged that Respondent does not have rights or legitimate interests in the <enterpriserent-a-car.us> 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).
Because Complainant
has established rights to the ENTERPRISE RENT-A-CAR mark and Respondent has not come
forward with any evidence showing it is the owner or beneficiary of a mark
identical to the <enterpriserent-a-car.us>
domain name, Complainant has satisfied Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the
respondent was the owner or beneficiary of a mark that is identical to the
<persiankitty.com> domain name); see also Pepsico, Inc.
v. Becky, FA 117014 (Nat. Arb.
Forum Sept. 3, 2002) (holding that because the respondent did not own any
trademarks or service marks reflecting the <pepsicola.us> domain name, it
had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant has alleged that Respondent is
not commonly known by the <enterpriserent-a-car.us>
domain name. The WHOIS information
identifies Respondent as “Luba Benson c/o T.N.T. TerrificNTerry, Inc.,” and Complainant has asserted
that Respondent is not licensed or authorized to use Complainant’s mark or any
variation thereof. The Panel can find no
other evidence in the record indicating that Respondent is commonly known by
the disputed domain name. Therefore, the
Panel concludes that Respondent is not commonly known by the <enterpriserent-a-car.us> domain name
pursuant to Policy ¶ 4(c)(iii). See The
Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding
that the respondent was not commonly known by the disputed domain names where
the WHOIS information, as well as all other information in the record, gave no
indication that the respondent was commonly known by the disputed domain names,
and the complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
Instron
Corp. v. Kaner, FA 768859 (Nat. Arb.
Forum Sept. 21, 2006) (finding that the respondent was not commonly known by
the <shoredurometer.com> and <shoredurometers.com> domain names
because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a
Electromatic Equip’t as the registrant of the disputed domain name and there was
no other evidence in the record to suggest that the respondent was commonly
known by the domain names in dispute).
Respondent is using
the <enterpriserent-a-car.us>
domain name to display hyperlinks advertising competing car rental
services. The Panel finds that such use
does not constitute a bona fide
offering of goods or services under Policy ¶ 4(c)(ii),
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Nat. Arb.
Forum May 11, 2007) (finding that the respondent’s use of a confusingly similar
domain name to advertise real estate services which competed with the
complainant’s business did not constitute a bona
fide offering of goods or services under UDRP ¶ 4(c)(i), or a legitimate
noncommercial or fair use under UDRP ¶ 4(c)(iii)); 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.
Registration
and Use in Bad Faith
Respondent’s <enterpriserent-a-car.us> domain name
resolves to a website that displays hyperlinks advertising the car rental services
of Complainant’s competitors. This is
likely to disrupt Complainant’s business by diverting potential customers to
Respondent’s website. The Panel finds
that such registration and use of the <enterpriserent-a-car.us>
domain name constitutes bad faith pursuant to Policy ¶
4(b)(iii). See David Hall Rare Coins v.
Complainant has alleged that
Respondent’s <enterpriserent-a-car.us>
domain name, which is identical to Complainant’s ENTERPRISE
RENT-A-CAR mark, is likely to cause confusion among customers searching for
Complainant’s vehical leasing, rental, and sales
services. In AOL LLC v. AIM Profiles, FA 964479 (Nat.
Arb. Forum May 20, 2007), the panel found that the respondent registered
and used the disputed domain name in bad faith pursuant to UDRP ¶ 4(b)(iv)
because the respondent was commercially gaining from the likelihood of
confusion between the complainant’s AIM mark and the competing instant
messaging products and services advertised on the respondent’s website which
resolved from the disputed domain name.
Similarly, in Asbury Automotive
Group, Inc. v.
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Complainant having established all three
elements required under the usTLD Policy, the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the <enterpriserent-a-car.us>
domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: June 11, 2007
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