Enterprise Holdings, Inc. v. linyanxiao / lin yanxiao
Claim Number: FA1410001585788
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by David R. Haarz of Harness, Dickey & Pierce, PLC., Virginia, USA. Respondent is linyanxiao / lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterprse.com>, registered with Hangzhou Aiming Network Co., Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 20, 2014; the National Arbitration Forum received payment on October 20, 2014. The Complaint was received in both English and Chinese.
On October 23, 2014, Hangzhou Aiming Network Co., Ltd confirmed by e-mail to the National Arbitration Forum that the <enterprse.com> domain name is registered with Hangzhou Aiming Network Co., Ltd and that Respondent is the current registrant of the name. Hangzhou Aiming Network Co., Ltd has verified that Respondent is bound by the Hangzhou Aiming Network Co., Ltd 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 October 30, 2014, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 19, 2014 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@enterprse.com. Also on October 30, 2014, the Chinese language 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 1, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant owns the ENTERPRISE mark through its trademark registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,343,167, registered June 18, 1985). The ENTERPRISE mark is used in connection with rental car services throughout the United States, Canada, Ireland, Germany and the United Kingdom. The <enterprse.com> domain name is confusingly similar to the ENTERPRISE mark as the domain name fully incorporates the mark, deleting the “i” to form a misspelled version of the mark, and adding the generic top-level domain (“gTLD”) “.com” at the end.
2. Respondent lacks rights in the disputed domain name. Respondent is not commonly known by the disputed domain name; instead the WHOIS record lists “lin yanxiao” as registrant. Complainant has not licensed or otherwise permitted Respondent to use the ENTERPRISE mark. Respondent is not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use as Respondent uses the disputed domain name to resolve to a website listing “Related Links,” which include links to Complainant and its competitors. Respondent has listed the domain name for sale in the amount of $2,000 which further proves Respondent lacks Policy ¶ 4(a)(ii) rights,
3. Respondent’s general offer to sell the disputed domain name in the amount of $2,000 also serves as evidence of bad faith. Further, Respondent has a history of bad faith as evidenced by two prior UDRP decisions. Third, Respondent’s registration of the <enterprse.com> domain name and use in connection with a commercial hyperlinks page is indicative of Policy ¶ 4(b)(iv) bad faith. Fourth, Respondent must have known of Complainant’s rights in the ENTERPRISE mark at the time of domain registration. Finally, as Respondent knowingly registered a common misspelling of the ENTERPRISE mark, Respondent has engaged in typosquatting, which is representative of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Enterprise Holdings, Inc. of St. Louis, MO, USA. Complainant is the owner of domestic and international registrations for the ENTERPRISE and ENTERPRISE.COM marks which it uses in connection with its provision of rental car goods and services on a domestic and international basis. Complainant has continuously used the ENTERPRISE mark since at least as early as 1985.
Respondent is linyanxiao / lin yanxiao, of Guangdong, China. Respondent’s registrar’s address is listed as Zhejiang, China. Respondent registered the disputed domain name on or about February 12, 2002.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making Chinese the language of the proceedings. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, concludes that the remainder of the proceedings may be conducted in English.
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(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.”).
Complainant alleges that the ENTERPRISE mark is used in connection with rental car services throughout the United States, Canada, Ireland, Germany and the United Kingdom. Complainant claims to own the ENTERPRISE mark through its trademark registrations with the USPTO (e.g., Reg. No. 1,343,167, registered June 18, 1985). The Panel finds that Complainant’s registration of the ENTERPRISE mark with the USPTO serves to adequately demonstrate Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). See Homer TLC, Inc. v. Song Bin, FA 1505218 (Nat. Arb. Forum July 30, 2013) (“Complainant’s USPTO registration sufficiently establishes its rights in the HOME DEPOT mark under Policy ¶4(a)(i), despite the fact Respondent resides outside of the United States.”).
Complainant argues that the <enterprse.com> domain name is confusingly similar to the ENTERPRISE mark as the domain name fully incorporates the mark, absent the letter “i” to form a misspelled version of the mark, while adding the gTLD “.com” at the end. Previous panels have found the addition of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Prior panels have also found confusing similarity where the domain name is comprised of a misspelled version of the mark. Notably, in Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005), the panel held that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i.” The Panel here finds that the <enterprse.com> domain name is confusingly similar to the ENTERPRISE mark pursuant to Policy ¶ 4(a)(i) as the domain name incorporates the mark less a single letter.
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See 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 UDRP ¶ 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 Complainant has met this burden.
Complainant alleges that Respondent lacks rights in the disputed domain name. Complainant first claims that Respondent is not commonly known by the disputed domain name, but instead by the name “lin yanxiao” as the listed registrant according to the WHOIS information. Additionally, Complainant states it has not licensed or otherwise permitted Respondent to use the ENTERPRISE mark. The Panel finds that there is no basis to find Respondent is commonly known by the <enterprse.com> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant argues that Respondent is not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use as Respondent uses the disputed domain name to resolve to a website listing “Related Links,” which include links to Complainant and its competitors. The Panel notes that Complainant has included a screen grab of the page resolving from the disputed domain name showing links such as “Alamo Car Rental Claims,” “Enterprise Deals,” and “Enterprise discounts.” The Panel finds that Respondent’s use of the disputed domain name to promote commercial links to Complainant and its competitors is neither a Policy ¶ 4(c)(i) bona fide offering, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Further evincing Respondent’s lack of Policy ¶ 4(a)(ii) rights, Complainant notes that Respondent has listed the domain name for sale in the amount of $2,000. In Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), the panel found that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name. The Panel finds that Complainant’s offer to sell the <enterprse.com> domain name for $2,000, if more than Respondent’s out-of-pocket expense, provides additional evidence that Respondent lacks any Policy ¶ 4(a)(ii) rights in the disputed domain name.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent’s general offer to sell the disputed domain name in the amount of $2,000 also serves as evidence of bad faith. To the extent that $2,000 is more than the out-of-pocket costs associated with the domain name, the Panel finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name).
Further, Complainant argues that Respondent has a history of bad faith as evidenced by two prior UDRP decisions. Complainant provides copies of two UDRP decisions in which Respondent was found in bad faith. RingCentral, Inc. v. Lin yanxiao, FA 1543485 (Nat. Arb. Forum Mar. 20, 2014); ER Marks, Inc. and QVC, Inc. v. Lin Yanxiao, FA 1430698 (Nat. Arb. Forum Apr. 13, 2012). The Panel finds that Respondent’s history of bad faith informs the Panel’s present analysis, and supports the conclusion that Respondent has engaged in a pattern of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Complainant additionally contends that Respondent’s registration of the <enterprse.com> domain name and use in connection with commercial hyperlinks page is indicative of Policy ¶ 4(b)(iv) bad faith. The Panel again notes that the disputed domain name resolves to links to Complainant as well its competitors such as “Alamo.” The Panel finds Respondent has engaged in Policy ¶ 4(b)(iv) bad faith by using the <enterprse.com> domain name to promote click-through links related to Complainant and competing car rental offerings. See 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).”).
Finally, Complainant asserts that Respondent knowingly registered a common misspelling of the ENTERPRISE mark and has thus engaged in typosquatting, which is representative of bad faith. In Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), the panel wrote, “Respondent’s registration and use of a domain name that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” The Panel here finds that the <enterprse.com> domain name is a typosquatted version of the ENTERPRISE mark as it merely omits the “i,” and therefore find additional evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <enterprse.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 15, 2014
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