DECISION

 

Enterprise Holdings, Inc. v. yang zhi chao

Claim Number: FA2309002063808

 

PARTIES

Complainant is Enterprise Holdings, Inc. ("Complainant"), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri, USA. Respondent is yang zhi chao ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <enterprisecarsasles.com>, registered with Xin Net Technology Corporation.

 

PANEL

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 27, 2023; Forum received payment on September 27, 2023.

 

On October 6, 2023, Xin Net Technology Corporation confirmed by e-mail to Forum that the <enterprisecarsasles.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 October 16, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of November 6, 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@enterprisecarsasles.com. Also on October 16, 2023, the Chinese and English 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 in Chinese and English.

 

On November 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

Pursuant to UDRP Rule 11(a) the Panel finds that there is persuasive evidence of the likely possibility that the Respondent is conversant and proficient in the English language. First, the at-issue domain name and Complainant's trademark consists of English words. Further, Respondent has created a misspelled version of Complainant's ENTERPRISE CAR SALES word mark to use in the at-issue domain name. The composition of the domain name thus shows that Respondent understands English at a level sufficient to create a typographical error that nevertheless fails to distinguish the domain name from Complainant's English language trademark. The <enterprisecarsasles.com> domain name also addresses a website hosting English-language pay-per-click links that link to English language websites and notably multiple prior panels have determined multiple times that UDRP proceedings involving Respondent may be in English. Complainant has no knowledge of Chinese and thus requiring Complainant to submit a Chinese-language complaint would likely cause delay to the proceeding and financially burden Complainant without any benefit to Respondent. Therefore, after considering the circumstances of the present dispute, including Respondent's failure to respond, the Panel concludes that this proceeding should be conducted in English. 

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant, Enterprise Holdings, Inc. provides vehicle rentals and leases.

 

Complainant has rights in the ENTERPRISE CAR SALES and related ENTERPRISE marks through numerous trademark registrations, including registrations with the United States Patent and Trademark Office ("USPTO").

 

Respondent's <enterprisecarsasles.com> domain name is confusingly similar to Complainant's mark as it contains recognizable misspelling of Complainant's ENTERPRISE CAR SALES trademark and merely adds the ".com" generic top-level domain ("gTLD").

 

Respondent lacks rights or legitimate interests in the <enterprisecarsasles.com> domain name since Respondent is not licensed or authorized to use Complainant's ENTERPRISE marks and is not commonly known by the at-issue domain name. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent diverts internet traffic to a parked webpage featuring pay-per-click hyperlinks.

 

Respondent registered and uses the <enterprisecarsasles.com> domain name in bad faith. Respondent uses the domain name to trade on the goodwill associated with Complainant's trademark to divert internet traffic to Respondent's webpage by taking advantage of the confusion between the domain name and Complainant's trademark thereby showing bad faith per Policy ¶ 4(b)(iv). Respondent has had over 50 adverse UDRP decisions and thus shows a pattern of domain name abuse under Policy ¶ 4(b)(ii). Respondent's domain name addresses a webpage displaying pay-per-click links while Respondent is otherwise passively holding the at-issue domain name. Respondent is engaged in typosquatting. Additionally, Respondent had actual knowledge of Complainant's rights in the ENTERPRISE CAR SALES mark when it registered the at-issue domain name. 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the ENTERPRISE CAR SALES mark.

 

Respondent is not affiliated with Complainant and has not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the ENTERPRISE CAR SALES trademark.

 

Respondent uses the at-issue domain name to address a webpage displaying pay-per-click links.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's ownership of at least one USPTO trademark registration for its ENTERPRISE CAR SALES mark demonstrates Complainant's rights in such trademark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) ("Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.").

 

Respondent's at-issue domain name contains a misspelled version of Complainant's ENTERPRISE CAR SALES trademark, followed by the ".com" top level domain name. The differences between Respondent's <enterprisecarsasles.com> domain name and Complainant's ENTERPRISE CAR SALES trademark are insufficient to distinguish the at-issue domain name from Complainant's trademark for the purposes of the Policy. The Panel thus finds that Respondent's <enterprisecarsasles.com> domain name is confusingly similar to Complainant's ENTERPRISE CAR SALES trademark pursuant to Policy ¶ 4(a)(i). See Enterprise Holdings, Inc. v. Privacy Protect, FA 1339542 (Forum Sept. 16, 2010) ("Previous panels have determined that domain names that contain common misspellings of a complainant's mark are not distinct from Complainant's mark, but are confusingly similar to said mark" in finding enterprisd.com confusingly similar to Complainant's ENTERPRISE mark).

 

Rights or Legitimate Interests

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. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademarks in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

The WHOIS information for the at-issue domain name identifies the domain name's registrant as "yang zhi chao" and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <enterprisecarsasles.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent's confusingly similar domain name addresses a webpage that displays pay-per-click hyperlinks. Using the confusingly similar domain name to host pay-per-click links constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) ("Respondent uses the [disputed] domain name to divert Internet users to Respondent's website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."); see also, Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent's lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

Respondent's at-issue domain name addresses a webpage featuring pay-per-click links. Such use of the domain name shows Respondent's bad faith registration and use of the <enterprisecarsasles.com> domain name. See Gold Medal Travel Grp. plc v. Kruzicevic, D2007-1902 (WIPO Mar. 12, 2008) (where the disputed domain name had been parked, the panel found the "the Registrant is responsible for the content of the material appearing on the webpage associated with the domain name in dispute"); see also, Plain Green, LLC v. wenqiang tang, FA 1621656 (Forum July 1, 2015) (finding that the respondent's use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)).

 

Additionally, Respondent has suffered adverse decisions as a respondent in numerous prior UDRP proceedings. Respondent's history thus reveals a pattern of domain name abuse that points to Respondent's bad faith in the instant dispute pursuant to Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA 1538218 (Forum Feb. 20, 2014) (holding that the respondent's registration of three domain names incorporating variants of the complainant's SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)); see also, Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA 1464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).

 

Respondent also engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark or will not closely read a misspelled trademark laden domain name and mistakenly confuse it with its target trademark. Although misspelled, Complainant's ENTERPRISE CAR SALES trademark is nevertheless clearly recognizable when reading Respondent's <enterprisecarsasles.com> domain name. Respondent's typosquatting, in itself, is evidence of bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that "[b]y registering the 'typosquatted' domain name in [Complainant's] affiliate program, Respondent profits on the goodwill of [Complainant's] protected marks and primary Internet domain names," which is evidence of bad faith registration and use).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the ENTERPRISE CAR SALES mark when it registered <enterprisecarsasles.com> as a domain name. Respondent's actual knowledge is evident from the notoriety of Complainant's ENTERPRISE CAR SALES trademark. Respondent's registration and use of the confusingly similar domain name with knowledge of Complainant's rights in ENTERPRISE CAR SALES further shows Respondent's bad faith registration and use per Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <enterprisecarsasles.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: November 8, 2023