Enterprise Rent-A-Car Company v. personal
Claim Number: FA0707001029980
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 <enterprisecarrentalbelize.com>,
registered with
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 10, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 12, 2007.
On July 10, 2007, Melbourne IT confirmed by e-mail to the National Arbitration Forum that the <enterprisecarrentalbelize.com> domain name is registered with Melbourne IT and that Respondent is the current registrant of the name. Melbourne IT has verified that Respondent is bound by the Melbourne IT registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July
13, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 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 postmaster@enterprisecarrentalbelize.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 8, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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:
1. Respondent’s
<enterprisecarrentalbelize.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <enterprisecarrentalbelize.com> domain name.
3. Respondent registered and used the <enterprisecarrentalbelize.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Rent-A-Car Company, has continuously
used the
Respondent’s <enterprisecarrentalbelize.com> domain name, registered on June 17, 2005, resolves to web page soliciting domain name registrations with a third-party company. The web page further contains a commercial search engine and sponsored links that offer car rental services in competition with the services offered under Complainant’s mark.
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 has sufficiently established its rights in the
Respondent’s <enterprisecarrentalbelize.com> domain name fully incorporates Complainant’s
ENTERPRISE mark and includes the generic terms “car” and “rental,” which
correspond to the services offered under Complainant’s mark. The disputed domain name then adds the geographic
reference “
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must initially make out
a prima facie case that Respondent
has no rights or legitimate interests in the domain name at issue. See
VeriSign
Inc. v. VeneSign
Respondent has failed to submit a Response to the
Complaint. The Panel thus presumes that
Respondent has no rights or legitimate interests in the <enterprisecarrentalbelize.com>
domain name, but will still
consider all the available evidence with respect to the factors listed in
Policy ¶ 4(c) before making this determination.
See Am.
Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all
rights and legitimate interests in the disputed domain name.”); see also G.D.
Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means
that Respondent has not presented any circumstances that would promote its
rights or legitimate interests in the subject domain name under Policy ¶
4(a)(ii).”).
Nowhere in the
record, including Respondent’s WHOIS information, does it indicate that
Respondent is or ever has been commonly known by the <enterprisecarrentalbelize.com>
domain name. Further, Respondent has not sought, nor has
Complainant granted, a license or permission to Respondent to use Complainant’s
mark in any way. Therefore, the Panel
finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union
Corp., D2000-0020 (WIPO Mar.
14, 2000) (finding no rights or legitimate interest where the respondent was
not commonly known by the mark and never applied for a license or permission
from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests
where (1) the respondent is not a licensee of the complainant; (2) the
complainant’s prior rights in the domain name precede the respondent’s
registration; (3) the respondent is not commonly known by the domain name in
question).
Respondent’s disputed domain name does not resolve to a web page that offers a business or any services from Respondent. Instead, the Respondent’s <enterprisecarrentalbelize.com> domain name, which includes the Complainant’s mark in its entirety, contains a web page soliciting domain name registrations with a third-party company, a commercial search engine and sponsored links that offer car rental services in competition with the services offered under Complainant’s mark. As a result the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or in a legitimate noncommercial or fair way pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) respectively. See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <enterprisecarrentalbelize.com>
domain name to link third-party
websites that offer personal financial services that compete with those offered
under Complainant’s ENTERPRISE mark.
Therefore, the Panel finds that Respondent registered and is now using
the disputed domain name in bad faith, primarily for the purpose of disrupting
Complainant’s business pursuant to Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000)
(finding the respondent acted in bad faith by attracting Internet users to a
website that competes with the complainant’s business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”).
Furthermore, the disputed domain name, which contains the Complainant’s mark in its entirety, is confusingly similar and features sponsored links to competitors of Complainant. It can be inferred that Respondent is financially benefiting from such use. Consequently, the Panel finds further evidence of bad faith registration and use 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 Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprisecarrentalbelize.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 22, 2007
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