Enterprise Holdings, Inc. v. umit bozdag
Claim Number: FA2212002022841
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri. Respondent is umit bozdag (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterpriserent.co>, (the “Domain Name”) registered with NameCheap, 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on December 5, 2022; Forum received payment on December 5, 2022.
On December 6, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <enterpriserent.co> Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 December 12, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2023 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@enterpriserent.co. Also on December 12, 2022, the 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 January 6, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of, inter alia, the marks ENTERPRISE and ENTERPRISE RENT-A-CAR registered in the USA and Turkey for vehicle rental services with first use recorded as 1969.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trademarks incorporating the Complainant’s ENTERPRISE mark in its entirety and adding only the term ‘rent’ (which is part of the Complainant’s ENTERPRISE RENT-A-CAR mark) and the ccTLD “.co” which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the Complainant’s mark. The Respondent is using the Domain Name for competing commercial pay per click links which is not a bona fide offering of services or a noncommercial or fair use. The Respondent does not have rights or a legitimate interest in the Domain Name.
The Domain Name has been registered and used in opportunistic bad faith and used for pay per click links which is registration and use in bad faith confusing Internet users and disrupting the Complainant’s business. The Respondent has registered other domain names containing the Complainant’s mark. The Complainant is concerned about phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the marks ENTERPRISE and ENTERPRISE RENT-A-CAR registered in the USA and Turkey for vehicle rental with first use recorded as 1969.
The Domain Name registered in 2022 has been used for competing commercial pay per click links. The Respondent has registered other domain names containing the Complainant’s mark.
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 Domain Name in this Complaint combines the Complainant’s ENTERPRISE mark (registered, inter alia, in the USA and TURKEY for vehicle rental services with first use recorded as 1969), the generic term “rent” and the ccTLD “.co”.
The addition of a generic term does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016) (Finding the addition of a generic term insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i).). Accordingly the addition of the generic term “rent” does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
The ccTLD “.co” (designating Colombia but often used informally to mean company) does not serve to distinguish a Domain Name from a Complainant’s mark. See Thomson Reuters Global Resources v. Matthew Krawitz, FA 1548336 (Forum Apr. 21, 2014) (“Respondent adds the country-code top-level domain (“ccTLD”) “.co” to Complainant’s mark in the disputed domain name, which also fails to distinguish the domain name from Complainant’s mark”).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its marks. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Panel notes the assertion that the Domain Name may have been registered for phishing, but no evidence has been produced of the same.
Use for pay-per-click links does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of ... domain name resolves to a site containing pay-per-click hyperlinks and advertisements … Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Respondent has not answered this Complaint or rebutted the prima face case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Use for competing commercial pay-per-click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. In the opinion of the panelist the use made of the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe they are connected to or approved by the Complainant.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v Above.comLegal, FA 1506001622088 (Forum July 10, 2015) regarding diversion to pay-per-click links.
Further, it seems the Respondent has registered other domain names containing the Complainant’s mark. Registering multiple domain names containing a complainant’s mark is evidence of a pattern of bad faith registration pursuant to Policy ¶ 4(b)(ii). See Nabisco Brands Co. v. Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(ii),(iii) and ¶ 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 <enterpriserent.co> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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