Enterprise Holdings, Inc. v. Oleg Techino c/o Oleg Techino a/k/a David Ghou c/o David Ghou a/k/a Lidnick Webcorp Inc c/o Lidnick Webcorp a/k/a Orel Hlasek LLC c/o Orel Hlasek
Claim Number: FA1101001366013
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Renee Reuter of Enterprise Holdings, Inc., Missouri, USA. Respondent is Oleg Techino c/o Oleg Techino a/k/a David Ghou c/o David Ghou a/k/a Lidnick Webcorp Inc c/o Lidnick Webcorp a/k/a Orel Hlasek LLC c/o Orel Hlasek (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com>, registered with Godaddy.Com, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 4, 2011; the National Arbitration Forum received payment on January 4, 2011.
On January 4, 2011, Godaddy.Com, Inc. confirmed by e-mail to the National Arbitration Forum that the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain name are registered with Godaddy.Com, Inc. and that Respondent is the current registrant of the names. Godaddy.Com, Inc. has verified that Respondent is bound by the Godaddy.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 January 14, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2011 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@enterpfise.com, postmaster@enterprisi.com, postmaster@enterpriss.com, and postmaster@snterprise.com. Also on January 14, 2011, 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 February 11, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names are confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names.
3. Respondent registered and used the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise Holdings, Inc., provides vehicle rental and leasing services under its ENTERPRISE mark. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ENTERPRISE mark (e.g., Reg. No. 2,458,529 issued June 5, 2001).
Respondent registered the <enterpfise.com>, <enterprisi.com>, and <enterpriss.com> domain names on October 19, 2004 and the <snterprise.com> domain name on July 22, 2009.
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.
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that Respondent registered each of the disputed domain names using falsified contact information. Complainant claims that Respondent uses 27 different aliases, including “Oleg Techino c/o Oleg Techino,” “David Ghou c/o David Ghou,” “Lidnick Webcorp Inc c/o Lidnick Webcorp,” and “Orel Hlasek LLC c/o Orel Hlasek.” Complainant argues that five commonalities, when taken together, support its conclusion that these registrants are in fact Respondent. First, all of the disputed domain names are registered using the same registrar, GoDaddy.com. Second, three of the four disputed domain names were registered on October 19, 2004, which indicates bulk registration. Third, the method of monetizing the domain names is similar. Complainant claims that the disputed domain names were originally used to engage in affiliate fraud, but Complainant deactivated Respondent’s affiliate ID as soon as it became aware of the alleged infringement. Fourth, the mechanisms used to forward traffic and profit from the domain names use the same patterns. Complainant states that all of the disputed domain names route through a third party’s affiliate marketing program and all of the domain names use the same affiliate ID. Fifth, all of the disputed domain names are typographical misspellings of its ENTERPRISE mark.
The Panel finds that Complainant has presented sufficient evidence that the disputed domain names are controlled by the same entity and thus chooses to proceed with the instant proceedings.
The Panel finds that Complainant’s trademark registrations sufficiently prove Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). Furthermore, the Panel finds it irrelevant whether Complainant holds trademark registrations for the ENTERPRISE mark with the trademark authority in the country in which Respondent resides. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names are confusingly similar to its ENTERPRISE mark. Respondent incorporates common misspellings of Complainant’s mark in the disputed domain names. In each domain name, a single letter of Complainant’s ENTERPRISE mark is replaced with another letter. The Panel finds that this does not sufficiently distinguish Respondent’s domain names from Complainant’s mark. The Panel also finds that the addition of the generic top-level domain (“gTLD”) “.com” is irrelevant under the Policy ¶ 4(a)(i) analysis. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also 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 Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds Respondent’s <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names are confusingly similar to Complainant’s ENTERPRISE mark under Policy ¶ 4(a)(i).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights and legitimate interests in the disputed domain names. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “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.”). Despite Respondent’s failure to respond, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant asserts that it is not affiliated with Respondent nor has it licensed Respondent to use any of its marks. Additionally, the WHOIS information does not indicate that Respondent is commonly known by any of the disputed domain names. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names under Policy ¶ 4(c)(ii). 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 IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Complainant claims that Respondent used the disputed domain names to redirect Internet users to Complainant’s website at the <enterprise.com> domain name in an attempt to receive “click-through” fees from Complainant’s affiliate program. Complainant states that Respondent’s domain names violate its affiliate agreement since the agreement does not allow members to use domain names that incorporate, or are confusingly similar to, Complainant’s marks. The Panel finds that Respondent used the disputed domain names in breach of Complainant’s affiliate agreement in order to profit from the receipt of click-through fees. Accordingly, the Panel holds that Respondent did not use the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names to make 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 Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program 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)); see also Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, the respondent intended to use the domain name to generate profit at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)).
Finally, Complainant contends that Respondent has engaged in typosquatting. Respondent replaces letters in Complainant’s ENTERPRISE mark to create common misspellings of the mark in the <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names. The Panel finds that this constitutes typosquatting, which provides additional evidence that Respondent lacks rights or legitimate interests in the domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent used the disputed domain names to profit from the receipt of click-through fees from Complainant’s affiliate program. Respondent’s <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names are confusingly similar to Complainant’s ENTERPRISE mark. Therefore, the Panel finds that Respondent intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s ENTERPRISE mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s sites. Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv). See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program).
The Panel further holds that Respondent’s typosquatting amounts to registration and use in bad faith under Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
The Panel finds 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 <enterpfise.com>, <enterprisi.com>, <enterpriss.com>, and <snterprise.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 18, 2011
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