Enterprise Holdings, Inc. v. kai tu
Claim Number: FA2203001988733
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Elizabeth K. Brock of Harness, Dickey & Pierce, PLC, Michigan, USA. Respondent is kai tu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprise-autos.com>, registered with West263 International Limited.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2022; the Forum received payment on March 17, 2022. The Complaint was received in English.
On March 17, 2022, West263 International Limited confirmed by e-mail to the Forum that the <enterprise-autos.com> domain name is registered with West263 International Limited and that Respondent is the current registrant of the name. West263 International Limited has verified that Respondent is bound by the West263 International Limited registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 23, 2022, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of April 12, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@enterprise-autos.com. Also on March 23, 2022, the Chinese and English language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 18, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Notice of Complaint and Commencement Notification in Chinese and has chosen not to respond to the Complaint. The disputed domain name is composed of Complainant’s mark plus an English word. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017); see also Kabushiki Kaisha Toshiba d/b/a Toshiba Corporation v. chenxiao lei / chen xiao lei, FA1909237 (Forum Sept. 21, 2020).
A. Complainant
Complainant states that it provides vehicle rental and leasing services worldwide. Complainant serves the vehicle rental and leasing needs of customers, including both business and holiday travelers, throughout the United States, Canada, Ireland, Germany, the United Kingdom, and other countries throughout the world. Complainant, its predecessor-in-interest, and its licensees have operated a vehicle rental and leasing business under the ENTERPRISE Mark in the United States since 1969. Complainant and its affiliated companies employ around 80,000 people worldwide and own around 1.7 million cars and trucks. Complainant has rights in the ENTERPRISE mark based on its registration of the in the United States in 1985. The mark is registered elsewhere around the world, including in China.
Complainant alleges that the disputed domain name is confusingly similar to its ENTERPRISE mark since it fully incorporates the mark and simply adds a hyphen, the descriptive term “autos,” and the “.com” generic top level domain (“gTLD”) to form the disputed domain name.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the ENTERPRISE mark. Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name resolved to a website offering gambling services.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Respondent used the disputed domain name to attract users for commercial gain to its gambling website. Additionally, Respondent’s use of a privacy service indicates bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the ENTERPRISE mark based on the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ENTERPRISE uses it to provide vehicle rental and leasing services worldwide.
Complainant’s rights in its mark dates back to 1985.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolved to a web site offering gambling services.
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."
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.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name fully incorporates Complainant’s ENTERPRISE mark and merely adds a hyphen, the descriptive term “autos,” and the “.com” gTLD. The addition of a generic/descriptive term, a hyphen, and a gTLD to a mark may not be sufficient to differentiate a disputed domain name from the mark it incorporates. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). Thus the Panel finds that the <enterprise-autos.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information identifies “kai tu” as the registrant. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolved to a website offering gambling services. Use of a disputed domain name to direct users to a website offering unrelated services does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make r 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent used the disputed domain name to attract users for commercial gain to its gambling website. Use of a disputed domain name to attract users to a respondent’s own website where it offers goods or services unrelated to a complainant is evidence of bad faith under Policy ¶ 4(b)(iv). See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant’s mark, to a gambling website); see also Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). Therefore the Panel finds bad faith registration and use per Policy ¶ 4(b)(iv).
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-autos.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 18, 2022
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