Enterprise Holdings, Inc. v. Aleksey Miroshnichenko
Claim Number: FA2301002027394
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri. Respondent is Aleksey Miroshnichenko (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprise-rent-a-car-airport.com>, registered with NameCheap, Inc..
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 Forum electronically on January 12, 2023; Forum received payment on January 12, 2023.
On January 13, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <enterprise-rent-a-car-airport.com> 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 January 18, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 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@enterprise-rent-a-car-airport.com. Also on January 18, 2023, 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 February 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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
Complainant states is an internationally recognized brand serving 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 asserts rights in the ENTERPRISE RENT-A-CAR mark based upon its registration in the United States in 1996.
Complainant alleges that the disputed domain name is confusingly similar to its ENTERPRISE RENT-A-CAR mark because it incorporates the mark in its entirety and merely adds a hyphen, the generic/descriptive term “airport”, and the top-level domain name (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s ENTERPRISE RENT-A-CAR mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name is redirected to a web site that offers competing services. There are MX records associated with the disputed domain name, therefore Respondent can use the disputed domain name to engages in phishing. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by offering for commercial gain services that compete with those of Complainant. Respondent used a privacy shield, evidencing bad faith registration. Respondent had actual knowledge of Complainant’s rights in the ENTERPRISE RENT-A-CAR mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademark rights for the mark ENTERPRISE-RENT-A-CAR and uses it to provide car rental services. The mark was registered in 1996.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2022.
The resolving website offers services that compete with those of Complainant.
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 incorporates Complainant’s ENTERPRISE-RENT-A-CAR the mark in its entirety and merely adds a hyphen, the generic/descriptive term “airport”, and the top-level domain name (“gTLD”) “.com”. Such changes are not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). Therefore the Panel finds that the <enterprise-rent-a-car-airport.com> domain name is confusingly similar to Complainant’s ENTERPRISE RENT-A-CAR mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s ENTERPRISE RENT-A-CAR mark and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name.”). Here, the WHOIS information for the disputed domain name lists the registrant as “Aleksey Miroshnichenko”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name is redirected to a web site that offers services that compete with those of Complainant. Use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Therefore the Panel finds that Respondent fails to use the disputed domain name to provide a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to 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, the resolving website offers services that compete with those of Complainant .Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Thus the Panel finds bad faith registration and use per Policy ¶¶ 4(b)(iii) & 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-rent-a-car-airport.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 10, 2023
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