Enterprise Holdings, Inc. v. Alex Suarez
Claim Number: FA2110001971057
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Elizabeth Brock of Harness, Dickey & Pierce PLC, Michigan, USA. Respondent is Alex Suarez (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterpriseautoprotection.com>, registered with Launchpad.com 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.
Richard Hill 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, Launchpad.com Inc. confirmed by e-mail to the Forum that the <enterpriseautoprotection.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com Inc. 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 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 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@enterpriseautoprotection.com. Also on November 5, 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. Respondent did however send emails to the Forum, see below.
On December 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states is an internationally recognized brand serving the vehicle rental and leasing needs of customers, including both business and holiday travelers, throughout the United States, Canada, Ireland, Germany, the United Kingdom and other countries throughout the world. Complainant, its predecessor-in-interest, and its licensees have operated a vehicle rental and leasing business under the ENTERPRISE mark in the United States since 1969. Complainant and its affiliated companies employ around 80,000 people worldwide and own around 1.7 million cars and trucks. Complainant owns rights in the ENTERPRISE mark through its registration of the mark in the United States in 1985.
Complainant alleges that the disputed domain name is confusingly similar to its ENTERPRISE mark, as it incorporates the mark in its entirety, merely adding the descriptive words “auto” and “protection” (which describe Complainant’s business), as well as the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use its ENTERPRISE mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the Respondent diverts users from Complainant’s business and offers competing services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by incorporating Complainant’s mark in the disputed domain name and offering competing services. Further, Respondent attempts to attract users for commercial gain by appearing to be sponsored or supported by Complainant. Finally, Respondent had actual notice of Complainant’s rights in the ENTERPRISE mark, evidenced by the use of the mark, the offer of competing and similar services, and the notoriety of Complainant’s mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its emails to the Forum, Respondent states, in pertinent part: “I think there’s a big misunderstanding. Everything I read was with a completely different company called oasis media, we are oasis media and marketing and all these complaints that I’ve been reading has nothing to do with our company.” And: “I had an Indian build us a website through Fiverr , we don’t even really use the site anymore.”
Complainant has registered trademark rights for the mark ENTERPRISE and uses it to provide car rental services. The mark was registered in 1985.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2021.
The resolving website offers services that compete with those of Complainant.
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”).
The disputed domain name incorporates Complainant’s mark in its entirety, merely adding the descriptive terms “auto” and “protection” (which relate to Complainant’s business), along with the “.com” gTLD. Merely adding descriptive terms that relate to a complainant’s goods and services and a gTLD is generally not sufficient to differentiate the disputed domain name from the mark. See Enterprise Rent-a-Car Company v. International Domain Names Inc. c/o Domain
Librarian, FA0704000960622 (Forum May 29, 2007) (“[The generic terms “auto” and “rentals”] describe Complainant’s business, and Complainant’s ENTERPRISE mark remains the dominant portion of the disputed domain name. Therefore, the Panel finds that Respondent’s <enterpriseautorentals.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark...”); see also The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). The Panel therefore finds that the <enterpriseautoprotection.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark per Policy per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: the Panel may reference WHOIS information to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows that the registrant of the disputed domain name is “Alex Suarez”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers competing services that divert and confuse users, harming Complainant’s business. Past panels have agreed that when a resolving website offers competing goods and deceives users, the Panel may find the Respondent is not using the disputed domain name in compliance with Policy ¶¶ 4(c)(i) or (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent provides contradictory information, first stating that it has no relation to the present dispute, then stating that it did indeed commission the creation of the resolving website, but no longer uses it. However, Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website disrupts Complainant’s business by promoting competing services. This may indicate bad faith under Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Caterpillar Inc. v. Vine, FA 97097 (Forum June 22, 2001) (“Respondent registered each of the disputed domain names in order to gain customers and to disrupt Complainant's business of authorizing dealers to sell its CATERPILLAR equipment.”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterpriseautoprotection.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 2, 2021
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