DECISION
Enterprise Holdings, Inc. v. Repossessed by Go Daddy
Claim Number: FA2401002081088
PARTIES
Complainant is Enterprise Holdings, Inc. ("Complainant"), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri, USA. Respondent is Repossessed by Go Daddy ("Respondent"), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecarrents.com>, registered with GoDaddy.com, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on January 26, 2024; Forum received payment on January 26, 2024.
On January 29, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <enterprisecarrents.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 February 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 26, 2024 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@enterprisecarrents.com. Also on February 5, 2024, 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.
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.
PARTIES' CONTENTIONS
A. Complainant
Complainant, Enterprise Holdings, Inc. is the owner of the ENTERPRISE mark, which it licenses to Enterprise Rent-A-Car and other operating entities (collectively "Enterprise"). Enterprise is an internationally recognized brand.
Respondent's <enterprisecarrents.com> domain name is confusingly similar to Complainant's ENTERPRISE mark. The <enterprisecarrents.com> domain name incorporates the ENTERPRISE mark in its entirety.
Respondent lacks rights or legitimate interests in the <enterprisecarrents.com> domain name registered February 8, 2023. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the ENTERPRISE mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services.
Respondent registered and uses the <enterprisecarrents.com> domain name in bad faith. Respondent registered and is using the disputed domain name to divert internet traffic to Respondent's webpage to trade upon the goodwill associated with Complainant's ENTERPRISE Mark
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <enterprisecarrents.com> domain name.
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
Complainant's registration of the ENTERPRISE mark with the USTPO (e.g. Reg No. 1,343,167, registered June 18, 1985) establishes Complainant's rights in the mark, as "registration of a mark with a legitimate governmental authority is sufficient under the Policy to allow a rebuttable presumption of rights in the mark." See Target Brands, Inc. v JK Internet Services, FA 349108 (Forum Dec. 14, 2004). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is identical or confusingly similar to Complainant's registered trademark. The disputed domain name consists of the usual "www." prefix, Complainant's trademark "enterprise the phrase "car rents," and the required generic top-level domain identifier, ".com." Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms does not prevent a finding of confusing similarity under the first element. See Rakuten, Inc. v. Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Matthew Connor, No Company, WIPO Case No. D2019-2983. Furthermore, the addition of a top-level domain is irrelevant for purposes of paragraph 4(a)(i) of the Policy. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs."). Therefore, the disputed domain name is identical or confusingly similar to Complainant's trademark.
Complainant has proved this element.
Rights or Legitimate Interests
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 a prima facie case.
Complaint argues that Respondent has no rights or legitimate interests in the disputed domain name. The resolving webpage appears to be a GoDaddy website set up with pay-per-click links related to rental services, including those offered by Complainant. The links include "15 Passenger Van Rental," "Passenger Van Rental," and "Cheap Rental Cars." When a user clicks the links on the initial resolved webpage, they are directed to another pay-per-click website that contains links to third-party websites, likely all incurring click-through fees. Respondent's disputed domain name, which is inactive and passively held by resolving only to a pay-per-click webpage fails as a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. Julio Callisaya Escobar/Auto Enterprise, FA 1960042 (Forum Sept. 15, 2021) ("An inactive website may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii)"). Respondent has paired Complainant's ENTERPRISE Mark with the phrase "car rents" to cause confusion to users seeking Complainant's vehicle rental services. Such use does not constitute a legitimate use and Respondent does not have any rights to or legitimate interests in the disputed domain name. Respondent's use of the disputed domain name which resolves to a parked webpage containing pay-per-click links—likely generating revenue for Respondent's benefit—qualifies as neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Disney Eners., Inc. v. Dot Stop, FA 145227 (Forum Mar. 17, 2003) (finding that the respondent's diversionary use of the complainant's mark(s) to attract Internet users to its own website was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
The WHOIS record for <enterprisecarrents.com> shows "Repossessed by Go Daddy" for the registrant name. There is nothing in the WHOIS record for the disputed domain name or on the webpage to which the disputed domain name resolves to indicate that Respondent is commonly known as, operating a business as, or advertising as "enterprisecarrents." Previous panels have found that, in the absence of evidence submitted by the respondent, the WHOIS record is the sole piece of relevant evidence when determining what a respondent is commonly known as. See Haas Automation, Inc. v. Machine Tools 24‐7 / Jon Beal, FA 1425055 (Forum Feb. 29, 2012) ("Respondent may well be known in the community as a vendor of used Haas equipment, but it has not shown that it is known as such by the name HAAS. The relevant evidence presented consists exclusively of the WHOIS information").
Complainant argues that Respondent is attempting to use the goodwill generated by the ENTERPRISE Mark through use of a confusingly similar domain name that does not resolve to an active webpage. See U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Forum May 6, 2003) (holding that the respondent's use of the complainant's mark and the goodwill surrounding that mark as a means of attracting Internet users to an unrelated business was not a bona fide offering of goods or services). The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Registration and Use in Bad Faith
Complainant argues that Respondent has registered and uses the disputed domain name in bad faith. Respondent's registration of a domain name that is confusingly similar to Complainant's ENTERPRISE Mark in order to divert Internet traffic to Respondent's webpage evidences an intent to trade upon the goodwill associated with Complainant's ENTERPRISE Mark. Respondent is deliberately using the disputed domain name that is confusingly similar to Complainant's ENTERPRISE Mark to attract, for commercial gain, users to its website, by creating a likelihood of confusion with Complainant's ENTERPRISE Mark as to the source, sponsorship, affiliation or endorsement of its website and the services offered at such websites. The disputed domain name does not resolve to an active webpage, instead Respondent is simply passively holding the disputed domain name, which previous panels have found to be in bad faith. See Gordon Rush & Co., Ltd. v Ramon Rono, FA 95495 (Forum Oct. 20, 2000) (holding that the circumstances indicate that Respondent's registration of the domain name was in bad faith and that Respondent is passively holding the domain name).
Complaint argues that considering Complainant's worldwide reputation for vehicle rental services, including car rentals, under its unique and distinctive ENTERPRISE Mark, Respondent registered the disputed domain with full knowledge of Complainant's rights in the ENTERPRISE Mark. See Enterprise Holdings, Inc. v. Domain Manager/Domain Escrow, FA 1444228 (Forum June 28, 2012) ("The Panel finds that, due to the fame of Complainant's [ENTERPRISE] mark, Respondent had actual knowledge of the mark and Complainant's rights"). The Panel finds from the fame of Complainant's mark and the use made of the domain name that Respondent had actual knowledge of Complainant's rights in the mark and registered and uses the domain name in bad faith.
Complainant has proved this element.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <enterprisecarrents.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
March 7, 2024
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