Enterprise Holdings, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2110001971049
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Elizabeth K. Brock of Harness, Dickey & Pierce, PLC, Michigan, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprisecareales.com>, registered with GoDaddy.com, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 28, 2021; the Forum received payment on October 28, 2021.
On October 29, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <enterprisecareales.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 November 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2021, 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@enterprisecareales.com. Also on November 3, 2021, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On November 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 is very well-known in the car sales business. Complainant has rights in the ENTERPRISE CAR SALES mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,061,596 registered November 22, 2011). Respondent’s <enterprisecareales.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the ENTERPRISE CAR SALES mark in its entirety and merely omits the letter “s” and adds the “.com” generic top-level domain (“gTLD”)
Respondent has no legitimate interests in the <enterprisecareales.com domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the ENTERPRISE CAR SALES mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name is used to download malicious software.
Respondent registered and uses the <enterprisecareales.com domain name in bad faith. Respondent has engaged in a pattern of bad faith registrations. Further, Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Additionally, Respondent engaged in typo-squatting. Also, Respondent uses the disputed domain name in a phishing scheme. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the ENTERPRISE CAR SALES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Enterprise Holdings, Inc. (“Complainant”), of St. Louis, MO, USA. Complainant is the owner of the registration for the mark ENTERPRISE CAR SALES, which is has used continuously since at least as early as 2011 in connection with its vehicle dealership products and services.
Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), of Panama City, Panama. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the <enterprisecareales.com> domain name was registered on or about March 22, 2021.
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”).
Complainant asserts rights in the ENTERPRISE CAR SALES mark based upon the registration with the USPTO (e.g., Reg. No. 4,061,596 registered November 22, 2011). Registration of a mark with the USPTO is a valid showing of rights in a mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel here finds the Complainant has rights in the mark under Policy 4(a)(i).
Complainant argues Respondent’s <enterprisecareales.com> domain name is virtually identical and confusingly similar to Complainant’s ENTERPRISE CAR SALES mark as it contains the ENTERPRISE CAR SALES mark in its entirety, merely deleting the letter “s” and adds the “.com” gTLD. The deletion of a single letter in a disputed domain and the addition of a gTLD may fail to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Lockheed Martin Corporation v. toyosei maruyama, FA 1620489 (Forum July 7, 2015) (“Simply removing the letter ‘s’ from a mark in the creation of a domain name still creates a confusingly similar domain name.”) The Panel here finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
The Panel notes that 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 here finds that Complainant has set forth the requisite prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <enterprisecareales.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the ENTERPRISE CAR SALES mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 disputed domain name lists the registrant as “Carolina Rodrigues,” and there is no evidence presented indicating that Respondent was authorized to use the ENTERPRISE CAR SALES mark. The Panel here finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the <enterprisecareales.com> domain name is used to download malicious software. Where the respondent uses a disputed domain name to download malicious software, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”). Here, Complainant provides screenshots of the disputed domain name being used to download malicious software. The Panel here finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent fails to use the disputed domain name in good faith as the <enterprisecareales.com> domain name is used to download malicious software. Where the respondent uses a disputed domain name to download malicious software, the Panel may find the respondent registered the domain name in bad faith per Policy ¶ 4(a)(iii). Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (“The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)”). As previously noted, Complainant provides screenshots of the disputed domain name being used to download malicious software. The Panel here finds that Respondent has registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii)
Complainant additionally argues that Respondent uses the <enterprisecareales.com> domain name to further a fraudulent phishing scam by collecting information using the disputed domain name. Phishing is a practice used to defraud internet users into revealing personal information. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). Here, Complainant provides evidence of a phishing scheme. The Panel here finds that Respondent has registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii)
Complainant also argues that Respondent engaged in typosquatting in bad faith. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that Respondent’s deletion of letter “s” in the ENTERPRISE CAR SALES mark constitutes typosquatting. The Panel here agrees and finds Respondent’s actions constitute bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecareales.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 14, 2021
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