Enterprise Rent-A-Car Company v. Pat Lee
Claim Number: FA0705000980747
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 <enterprisecarrantal.com>, registered with Go Daddy Software, 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 May 10, 2007; the National Arbitration 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 National Arbitration Forum that the <enterprisecarrantal.com> 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 ICANN's Uniform Domain Name 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 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@enterprisecarrantal.com by e-mail.
Having received no response from Respondent, the National Arbitration 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 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
<enterprisecarrantal.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrantal.com> domain name.
3. Respondent registered and used the <enterprisecarrantal.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car, holds a trademark
registration with the United States Patent and Trademark Office (“USPTO”) for
the
Respondent registered the <enterprisecarrantal.com> domain name on July 3, 2006. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website displaying links to third-party websites offering goods and services in competition with Complainant’s goods and services under the ENTRERPRISE mark. Respondent also displays a link to Complainant’s <enterprise.com> 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 has established rights in the
Respondent’s <enterprisecarrantal.com> domain name
is confusingly similar to Complainant’s ENTERPRISE mark as it uses
Complainant’s mark in its entirety and merely adds the words “car” and “rantal”
to the mark. The addition of the
descriptive words “car” and “rantal,” an obvious misspelling of the descriptive
word “rental,” describes the business in which Complainant uses its
Respondent also adds the generic top-level domain (“gTLD”) “.com” to the mark. Panels have previously held that the addition of a gTLD is not relevant to the determination of whether a mark is confusingly similar under Policy ¶ 4(a)(i). See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <enterprisecarrantal.com> domain name. Complainant’s submission establishes a prima facie case which shifts the burden to Respondent to prove that it has rights or legitimate interests in the disputed domain name. See 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”); see also 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).”).
The Panel assumes that Respondent does not have rights or legitimate interests here because Respondent has failed to respond to the Complaint. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). However, the Panel will consider all available evidence before determining whether Respondent has rights or legitimate interest under Policy ¶ 4(c).
Complainant contends that Respondent is using the <enterprisecarrantal.com> domain name to redirect Internet users to Respondent’s website displaying links to third-party website offering goods and services in direct competition with Complainant’s goods and services under the ENTERPRISE mark. Respondent’s use of the disputed domain name to display links to websites in competition with Complainant is not a use in connection with 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 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Additionally, Respondent has offered no evidence and no
evidence is present in the record to indicate that Respondent is commonly known
by the <enterprisecarrantal.com>
domain name. Respondent’s WHOIS
information identifies Respondent as “Pat Lee.”
Therefore, the Panel finds that Respondent has failed to show rights or
legitimate interests under Policy ¶ 4(c)(ii). See 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.”); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <enterprisecarrantal.com> domain name, which is confusingly similar to Complainant’s ENTERPRISE mark, to redirect Internet users to Respondents website displaying links to competing goods and services. The Panel finds that such use constitutes disruption, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that respondent’s use of the disputed domain name to display links to services in competition with Complainant constituted disruption under Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Additionally, Respondent is using
the <enterprisecarrantal.com> domain name to redirect Internet users to links offering competing
goods and services with Complainant for the assumed profit of Respondent. Complainant alleges that Internet users
searching for Complainant’s website under the
Finally, Complainant contends that in addition to Respondent’s registration of the confusingly similar <enterprisecarrantal.com> domain name, Respondent has frequently registered domain names that infringe on other registered trademarks. The Panel finds that such a pattern of abuse of trademarks is evidence of bad faith registration and use under Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also Société Air France v. Mert, D2004-0759 (WIPO Dec. 3, 2004) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the complainant provided evidence of a pattern of registration of “numerous other domain names” by the respondent).
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 <enterprisecarrantal.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Date: June 12, 2007
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