Enterprise Holdings, Inc. v. Yasin Çiçek
Claim Number: FA2209002013714
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri, USA. Respondent is Yasin Çiçek (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisse.net>, registered with ODTÜ Gelistirme Vakfi Bilgi Teknolojileri Sanayi Ve Ticaret Anonim Sirketi.
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 Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to Forum electronically on September 27, 2022; Forum received payment on September 27, 2022. The Complaint was submitted in English.
On September 28, 2022, ODTÜ Gelistirme Vakfi Bilgi Teknolojileri Sanayi Ve Ticaret Anonim Sirketi confirmed by e-mail to Forum that the <enterprisse.net> domain name is registered with ODTÜ Gelistirme Vakfi Bilgi Teknolojileri Sanayi Ve Ticaret Anonim Sirketi and that Respondent is the current registrant of the name. ODTÜ Gelistirme Vakfi Bilgi Teknolojileri Sanayi Ve Ticaret Anonim Sirketi has verified that Respondent is bound by the ODTÜ Gelistirme Vakfi Bilgi Teknolojileri Sanayi Ve Ticaret Anonim Sirketi 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 September 30, 2022, Forum served the Complaint and all Annexes, including a Turkish and English language Written Notice of the Complaint, setting a deadline of October 20, 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@enterprisse.net. Also on September 30, 2022, the Turkish 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 28,2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 THE PROCEEDINGS
As the registration agreement relating to the disputed domain name is in the Turkish language, the language of the proceeding is presumed to be Turkish. However, the Panel has a discretion under UDRP Rule 11(a) to determine a different language if it would be more appropriate the appropriate, taking into consideration the particular circumstances of the administrative proceeding. Complainant has submitted that because Respondent has demonstrated that it is sufficiently proficient in English, the proceedings should be conducted in the English language. The Panel notes in that regard that the disputed domain name previously resolved to an English-language website and contains a typographical error of Complainant’s English-language mark. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English).
Pursuant to UDRP Rule 11(a), the Panel therefore finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding will be conducted in the English language.
A. Complainant
Complainant made the following contentions.
Complainant, Enterprise Holdings, Inc., offers car rental and leasing services. Complainant has rights in the ENTERPRISE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,343,167 registered June 18, 1985). See Compl. Ex. 3. Respondent’s <enterprisse.net> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the ENTERPRISE mark in its entirety and adds the letter “s” and the “.net” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <enterprisse.net> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the ENTERPRISE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name currently resolves to an inactive webpage. Respondent uses the disputed domain name to engage in typosquatting.
Respondent registered and uses the <enterprisse.net> domain name in bad faith. Respondent registered the disputed domain name in order to divert customers for commercial gain. Respondent registered the disputed domain name in order to participate in typosquatting. The disputed domain name resolves to an inactive webpage. Respondent makes use of a privacy service. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ENTERPRISE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that provides car rental and leasing services.
2. Complainant has established its trademark rights in the ENTERPRISE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,343,167, registered June 18, 1985).
3. Respondent registered the <enterprisse.net> domain name on March 25, 2022.
4. Respondent has caused the disputed domain name to resolve to an inactive webpage and Respondent uses the domain name to engage in typosquatting.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the ENTERPRISE mark based upon the registration of the mark with the USPTO (e.g., Reg. No. 1,343,167 registered June 18, 1985). See Compl. Ex. 3. Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the ENTERPRISE mark with the USPTO, the Panel finds that the Complainant has rights in the mark under Policy 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s ENTERPRISE mark. Complainant argues Respondent’s <enterprisse.net> domain name is confusingly similar to Complainant’s ENTERPRISE mark. The addition of a gTLD and a single letter fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). Here, the disputed domain name contains the ENTERPRISE mark in its entirety while adding in the letter “s” and the “.net” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s ENTERPRISE mark and to use it in its domain name adding only the letter “s” to the mark;
(b) Respondent registered the domain name on March 25, 2022;
(c) Respondent has caused the disputed domain name to resolve to an inactive webpage and Respondent uses the domain name to engage in typosquatting;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent lacks rights or legitimate interests in the <enterprisse.net> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the ENTERPRISE mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). The WHOIS information for the disputed domain name lists the registrant as “Yasin Çiçek”. See Registrar Email Verification. Complainant further submits it has not licensed or otherwise authorized Respondent to use Complainant’s ENTERPRISE mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name instead resolves to an inactive webpage. Where the Respondent fails to make active use of a domain, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Here, Complainant provides evidence of the disputed domain name resolving to an inactive webpage. See Compl. Ex. 5. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii);
(g) Complainant argues that, because the domain name includes the mark while adding a letter to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated its lack of rights or legitimate interests in the domain name. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum April 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). Here, the <enterprisse.net> domain name adds the letter “s” to the ENTERPRISE mark. As the Panel agrees, it finds that Respondent lacks rights or legitimate interests in the disputed domain name, per Policy ¶ 4 (a)(ii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <enterprisse.net> domain name in bad faith because Respondent attempts to take advantage of confusion with Complainant’s well-known mark to attract Internet users to its website for commercial gain. Use of a domain name that is confusingly similar to a well-known mark can be evidence of a bad faith attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). In addition, use of a confusingly similar domain name to divert internet users and collect click-through fees may be further evidence of bad faith under Policy ¶ 4(b)(iv). See Maricopa Cmty. Coll. Dist. v. College.com, LLC, FA 536190 (Forum Sept. 22, 2005) (“The Panel infers that Respondent receives click-through fees for diverting Internet users to a competing website. Because Respondent’s domain name is identical to Complainant’s PHOENIX COLLEGE mark, Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Thus, Respondent’s use of the <phoenixcollege.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Here, Complainant contends that Respondent uses the disputed domain name to take advantage of a likelihood of confusion with Complainant’s mark and collect click-through fees. See Compl. Ex. 5. As the Panel agrees, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Thirdly, Complainant argues that, because the domain includes only the mark while adding a letter to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated bad faith registration and use. Typosquatting may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (Forum July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting. Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”). As previously mentioned, <enterprisse.net> is an example of typosquatting. Thus, the Panel finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Fourthly, Complainant further contends that, because Respondent made use of a privacy service, Respondent has demonstrated bad faith registration and use. Use of a privacy service may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). Here, Complainant provides evidence of Respondent’s use of a privacy shield. See Compl. Ex. 1. As the Panel agrees, it finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Fifthly, Complainant contends that in light of the fame and notoriety of Complainant's ENTERPRISE mark, it is inconceivable that Respondent could have registered the <enterprisse.net> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel here notes that any arguments of bad faith based on constructive notice are irrelevant, however, because prior UDRP decisions have generally declined to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). In this case, the Panel notes the notoriety of Complainant’s mark. As the Panel determines that Respondent had actual knowledge of Complainant’s rights in the mark, the Panel finds bad faith registration and use per Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisse.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: October 31, 2022
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