Enterprise Rent-A-Car Company v. Whois Service c/o
Claim Number: FA0705000992206
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki
L. Little, of Schultz & Little, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <enterprisecarsforsale.org> and <enterpriserent.org>, registered with Domain Contender, LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 18, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@enterprisecarsforsale.org and postmaster@enterpriserent.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<enterprisecarsforsale.org> and <enterpriserent.org>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarsforsale.org> and <enterpriserent.org> domain names.
3. Respondent registered and used the <enterprisecarsforsale.org> and <enterpriserent.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, is a well-known
vehicle rental, leasing and sales company.
In conjunction with the provision of these services, Complainant has
registered a number of trade and service marks with the United States Patent
and Trademark Office (“USPTO”) including the
Respondent registered the <enterprisecarsforsale.org>
domain name
on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant proclaims rights in the
The disputed domain names contain Complainant’s mark in its
entirety and, in the case of the <enterprisecarsforsale.org> domain name, adds that
generic or descriptive terms “cars,” “for,” and “sale,” and in the case of the <enterpriserent.org>
domain name, the generic or descriptive term “rent.” The generic or descriptive terms all relate
to Complainant’s business. Both disputed
domain names also contain the generic top-level domain (“gTLD”) “.org.” The Panel finds that the addition of generic
or descriptive terms, as well as a gTLD, to a protected mark fails to
sufficiently distinguish the domain names from the mark pursuant to Policy ¶
4(a)(i). See Isleworth Land Co. v. Lost
in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made a prima facie case in support of its allegations, the burden shifts to Respondent to set forth evidence indicating that it has rights or legitimate interests in accordance with Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that this Complainant’s assertions are sufficient to establish a prima facie case for purposes of the Policy. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
The disputed domain names resolve to websites that offer links to competing websites. The Panel finds that such use is 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
An examination of Respondent’s
WHOIS registration information reveals that the registrant of the <enterprisecarsforsale.org> and <enterpriserent.org>
domain names is “Whois Service c/o Belize Domain WHOIS Service.” Absent evidence pointing to a contrary
conclusion, the Panel finds that Respondent is not commonly known by the
disputed domain names pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
The disputed domain names resolve to websites featuring links to competing websites. The Panel finds that such use amounts to a disruption of Complainant’s business, which suggests registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Presumably, Respondent receives financial benefit in the
form of click-through fees from its misdirection of Internet traffic. Further, Respondent’s use of confusingly
similar domain names to attract traffic to its sponsored links websites is
likely to engender confusion among Internet users as to the source and
affiliation of the resulting websites.
The Panel finds that Respondent’s use evinces registration and use in
bad faith pursuant to Policy ¶ 4(b)(iv).
See Drs. Foster & Smith, Inc.
v. Lalli, FA 95284 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarsforsale.org> and <enterpriserent.org> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 29, 2007
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