Enterprise
Holdings, Inc. v.
Claim Number: FA1007001337415
Complainant is Enterprise
Holdings, Inc. (“Complainant”), represented by Renee Reuter, of Enterprise Holdings, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <enterprtse.com>, registered with Compana, LLC.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically July 26, 2010.
On July 28, 2010, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <enterprtse.com> domain name is registered with Compana, LLC and that Respondent is the current registrant of the name. Compana, LLC verified that Respondent is bound by the Compana, LLC registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 3, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 2010, 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@enterprtse.com by e-mail. Also on August 3, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 1, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 a Written Notice, as defined in Rule 1. 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. The
domain name that Respondent registered, <enterprtse.com>, is
confusingly similar to Complainant’s
2. Respondent has no rights to or legitimate interests in the <enterprtse.com> domain name.
3. Respondent registered and used the <enterprtse.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc.,
provides car rental services to customers throughout the
Reg. No. 1,343,167 issued June 18, 1985 and
Reg. No. 2,371,192 issued July 25, 2000.
Respondent, Texas International Property Associates, registered the <enterprtse.com> domain name April 1, 2006. The disputed domain names resolves to a directory website displaying pay-per-click links to third-party websites, some of which offer car rental services in competition with 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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 owns trademark registrations for the
Reg. No. 1,343,167 issued June 18, 1985 and
Reg. No. 2,371,192 issued July 25, 2000.
The Panel finds that Complainant established that it has rights
in the
Complainant argues that the Respondent’s <enterprtse.com> domain name is confusingly similar to Complainant’s ENTERPRISE mark because the disputed domain name simply misspells Complainant’s mark by replacing the letter “i” in Complainant’s mark with the letter “t.” The disputed domain name also attaches the generic top-level domain (“gTLD”) “.com.” The Panel finds that a simple misspelling that only exchanges one letter for another fails to distinguish Respondent’s disputed domain name from Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). The Panel also finds that adding a gTLD has no effect on the Policy ¶ 4(a)(i) analysis as gTLDs are required elements in domain names. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds that the disputed domain name is confusingly
similar to Complainant’s protected mark; Complainant satisfied the elements of
ICANN Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights to or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case, the burden of proof shifts to Respondent to demonstrate that it does have such rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant made a prima facie case in these proceedings. Since Respondent did not respond to the allegations against it, the Panel may assume that Respondent lacks any rights or legitimate interests in the disputed domain name. The Panel, however, elects to consider the evidence in the record under the Policy ¶ 4(c) factors to determine if the evidence suggests that Respondent has rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also 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.”).
Complainant contends that Respondent is not licensed or otherwise authorized to use Complainant’s mark in the <enterprtse.com> domain name. The WHOIS information for the disputed domain name lists the registrant as “Texas International Property Associates,” which does not show any nominal link between Respondent and the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent is not commonly known by the disputed domain name and according lacks rights and legitimate interests. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that respondent was commonly known by the disputed domain name).
Complainant next urges that Respondent’s <enterprtse.com> domain name resolves to a directory website featuring generic pay-per-click links to third-party websites, some of which compete with Complainant’s car rental services. The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and that it is not a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interest in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
Complainant further contends that Respondent is capitalizing
on a common typographical error of Complainant’s
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant lastly urges that Respondent registered and used the disputed domain name in bad faith. Respondent’s <enterprtse.com> domain name resolves to a website containing links to third-party websites, some of which compete with Complainant’s car rental services. Such activity clearly disrupts Complainant’s business as Internet users seeking Complainant’s products will be diverted to sites featuring competing products. The Panel finds that this disruption of Complainant’s business and diversion of Internet users to Complainant’s competitors supports findings of bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant also alleges that Respondent intentionally misspells Complainant’s mark in the <enterprtse.com> domain name to attract Internet users seeking Complainant’s products. When the Internet users are diverted to Respondent’s website and then click on any of the third-party links, it is presumed that Respondent is compensated on a pay-per-click basis. The Panel finds that Respondent’s efforts to mislead Internet users and attract Complainant’s customers in order to receive commercial gain also is evidence that supports findings of bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel has previously concluded that Respondent engaged in the practice of typosquatting through the use of the confusingly similar <enterprtse.com> domain name. The Panel finds that this practice of typosquatting is evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See, e.g., Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith under a Policy ¶ 4(a)(iii) analysis. See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatologica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprtse.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 9, 2010
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