Enterprise Rent-a-Car Company v. BGSvetionik
Claim Number: FA0702000925273
Complainant is Enterprise Rent-a-Car Company (“Complainant”), represented by David
R. Haarz, of Harness, Dickey, & Pierce, PLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rentacar-enterprise.com>, registered with Go Daddy Software, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 26, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 1, 2007.
On March 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 2, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <rentacar-enterprise.com> domain name.
3. Respondent registered and used the <rentacar-enterprise.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-a-Car Company, is one of the
largest car rental companies in the world.
In connection 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 <rentacar-enterprise.com> domain name on November 17, 2006. The disputed domain name resolves to Respondent’s Serbian-language website that offers vehicle rental services.
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 asserts rights in the
Respondent’s <rentacar-enterprise.com> domain name contains Complainant’s mark in its entirety, adds the descriptive term “rentacar,” which relates to Complainant’s business, a hyphen, and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a descriptive term relating to Complainant’s business, a hyphen, and the gTLD “.com” fails to preclude a finding of confusing similarity pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Chernow Communications, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Once Complainant has made a prima facie case in support of its allegations, the burden shifts to Respondent to set forth credible evidence indicating that it has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
Respondent’s disputed domain name resolves to Respondent’s own website, which features information on Respondent’s commercial undertakings. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use in accordance with Policy ¶ 4(c)(iii). See Bank of America Corp. v. Northwest Free Community Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also America Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”).
Additionally, there is no
available evidence that Respondent is commonly known by the disputed domain
name. Based on Respondent’s WHOIS
information and the other available evidence, the Panel finds that Respondent
is not commonly known by the disputed domain name, either personally or
professionally, pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to Respondent’s own commercial website, from which Respondent presumably receives monetary gain. The Panel finds that Respondent’s intentional misdirection of unsuspecting Internet users to Respondent’s own website constitutes an attraction for commercial gain, which demonstrates registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).
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 <rentacar-enterprise.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 11, 2007
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