Enterprise Holdings, Inc. v. Privacy Protect
Claim Number: FA1008001339542
Complainant is Enterprise
Holdings, Inc. (“Complainant”), represented by Renee Reuter, of Enterprise Holdings, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com>, registered with Dynadot, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 6, 2010.
On August 10, 2010, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 August 11, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@ehterprise.com, postmaster@enterprisd.com, postmaster@enterpriwe.com, and postmaster@wnterprise.com by e-mail. Also on August 11, 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 13, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<ehterprise.com>,
<enterprisd.com>, <enterpriwe.com>, and <wnterprise.com>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names.
3. Respondent registered and used the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc.,
is the owner of the
Respondent, Privacy Protect, registered the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names on July 16, 2009. Respondent’s disputed domain names redirect Internet users to the third-party website <carrental-find.info> which features a search engine and third-party links to competing automobile rental websites.
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 submits evidence to show that it owns numerous
trademark registrations with the USPTO for its
Complainant contends that the <ehterprise.com>, <enterprisd.com>,
<enterpriwe.com>, and <wnterprise.com> domain
names are all confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not possess rights and legitimate interests in the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names under Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to display that it does possess rights and legitimate interests in the disputed domain names. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com> domain names. Respondent has failed to respond to these proceedings, and as such the Panel finds that it may infer that Respondent lacks rights and legitimate interests in the disputed domain names. 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 Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). However, the Panel will analyze the evidence on record to determine whether Respondent has rights and legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known
by the <ehterprise.com>,
<enterprisd.com>, <enterpriwe.com>, and <wnterprise.com>
domain names. Further, Complainant
contends that it has not authorized or licensed Respondent to use the
Complainant contends that
Respondent is using the disputed domain names to send Internet users to the
third-party website <carrental-find.info> that displays third-party
hyperlinks to Complainant’s website as well as to competing automobile rental
companies. Complainant argues that such
use is evidence of Respondent’s lack of rights and legitimate interests in the
domain names. The Panel agrees and finds
that Respondent’s use of the disputed domain names to display third-party
hyperlinks to Complainant’s official website and to Complainant’s competitors
is not 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). See Skyhawke Techns., LLC v.
Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com>
domain name to display a list of hyperlinks, some of which advertise
Complainant and its competitors’ products.
The Panel finds that this use of the disputed domain name does not
constitute a bona fide offering of
goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii).”); see also
ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007)
(finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites
from which Respondent presumably receives referral fees….is neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has alleged that Respondent’s disputed domain
names redirect Internet users to the third-party website
<carrental-find.info>, which features a search engine and third-party
links to Complainant and Complainant’s competitors. Previous panels have found a respondent’s use
of a confusingly similar domain name resolving to a website featuring a search
engine and competing hyperlinks constitutes a disruption of a complainant’s
business. See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007)
(finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a
respondent used the disputed domain name to operate a commercial search engine
with links to the complainant’s competitors); see also 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).
Respondent’s <ehterprise.com>, <enterprisd.com>, <enterpriwe.com>, and <wnterprise.com>
domain names resolve to a website that
features search engines and hyperlinks to Complainant’s competitors in the
automobile rental industry. Therefore,
the Panel finds Respondent’s use of the disputed domain names disrupts
Complainant’s automobile rental business and constitutes bad faith registration
and use under Policy ¶ 4(b)(iii).
Complainant alleges, and the Panel infers, that Respondent profits from its receipt of click-through fees from its commercial search engines and various third-party hyperlinks to businesses in competition with Complainant. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and resolving website. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
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 <ehterprise.com>, <enterprisd.com>, <enterpriwe.com> and <wnterprise.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 16, 2010
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