Enterprise Rent-A-Car Company v. Admin
c/o LaPorte Holdings
Claim
Number: FA0508000531533
Complainant is Enterprise Rent-A-Car Company (“Complainant”),
represented by Vicki L. Little, of Schultz & Little, L.L.P.,
640 Cepi Drive, Suite A, Chesterfield, MO 63005-1221. Respondent is Admin c/o LaPorte Holdings (“Respondent”), 5482 Wilshire Blvd. #1928, Los
Angeles, CA 90036.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <cartechenterprise.com>, registered with Nameking.com,
Inc.
The
undersigned certifies that he has acted independently and impartially and to
the best of hisknowledge 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
4, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 8, 2005.
On
August 5, 2005, Nameking.com, Inc. confirmed by e-mail to the National
Arbitration Forum that the <cartechenterprise.com> domain name is
registered with Nameking.com, Inc. and that Respondent is the current
registrant of the name. Nameking.com,
Inc. has verified that Respondent is bound by the Nameking.com, Inc. 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, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 31, 2005 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@cartechenterprise.com by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 8, 2005, 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." 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 <cartechenterprise.com>
domain name is confusingly similar to Complainant’s ENTERPRISE mark.
2. Respondent does not have any rights or
legitimate interests in the <cartechenterprise.com> domain name.
3. Respondent registered and used the <cartechenterprise.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Enterprise Rent-A-Car Company, holds several trademark registrations with the
United States Patent and Trademark Office (“USPTO”) for the ENTERPRISE mark (i.e.,
Reg. No. 1,343,167 issued June 18, 1985).
Complainant has used the ENTERPRISE mark in connection with its vehicle
rental, leasing and sales services since 1985.
Respondent
registered the <cartechenterprise.com> domain name on January 12,
2005. Respondent’s domain name resolves
to a website that features links to competing car rental services.
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
established rights in the ENTERPRISE mark through registration of the mark with
the USPTO and through continuous use of the mark in commerce. See Am. Online, Inc. v. Thomas P.
Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful
trademark registration with the USPTO creates a presumption of rights in a
mark); see also Innomed Tech., Inc. v. DRP Servs., FA
221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of
the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Respondent’s <cartechenterprise.com> domain name is confusingly similar to Complainant’s
ENTERPRISE mark because Respondent’s domain name incorporates Complainant’s
mark in its entirety and adds the term “cartech” and the generic top-level
domain “.com.” The Panel finds that
such minor additions to Complainant’s well-known registered mark do not negate
the confusingly similar aspects of Respondent’s domain name pursuant to Policy
¶ 4(a)(i). See Arthur
Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar.
23, 2001) (finding confusing similarity where the domain name in dispute
contains the identical mark of the complainant combined with a generic word or
term); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO
Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive
word . . . nor the suffix ‘.com’ detract from the overall
impression of the dominant part of the name in each case, namely the trademark
SONY” and thus Policy ¶ 4(a)(i) is satisfied); see also Rollerblade, Inc. v.
McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the
domain name such as “.net” or “.com” does not affect the domain name for the
purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has
alleged that Respondent does not have rights or legitimate interests in the <cartechenterprise.com>
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, the Panel assumes that Respondent does not have
rights or legitimate interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that respondent does not have
rights or legitimate interests with respect to the domain name, it is incumbent
on respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that, under certain circumstances, the mere assertion by the complainant that
the respondent does not have rights or legitimate interests is sufficient to shift
the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
Complainant is
using the <cartechenterprise.com> domain name, which is
confusingly similar to Complainant’s ENTERPRISE mark, to operate a website that
features links to competing car rental services. Such competing use is not a use in connection with 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). See DLJ Long
Term Inv. Corp. v. BargainDomainNames.com, FA
104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent
is not using the disputed domain name in connection with a bona fide offering
of goods and services because Respondent is using the domain name to divert
Internet users to <visual.com>, where services that compete with
Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11,
2002) (finding that the respondent’s use of the disputed domain name to
redirect Internet users to a financial services website, which competed with
the complainant, was not a bona fide offering of goods or services).
Furthermore,
nothing in the record indicates that Respondent is either commonly known by the
<cartechenterprise.com> domain name or is authorized or licensed
to register a domain name featuring Complainant’s ENTERPRISE mark. Thus, the Panel finds that Respondent does
not have rights or legitimate interests in the <cartechenterprise.com>
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 rights in the mark precede the
respondent’s registration; (3) the respondent is not commonly known by the
domain name in question).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is
using the <cartechenterprise.com> domain name, which is
confusingly similar to Complainant’s ENTERPRISE mark, to operate a website that
features links to competing car rental services. Such use constitutes disruption and is evidence that Respondent
registered and used the domain name in bad faith pursuant to Policy ¶
4(b)(iii). See Six
Continents Hotels, Inc. v. Asia Ventures,
D2003-0659 (WIPO Oct. 14, 2003) (finding that the respondent registered a
domain name primarily to disrupt the business of its competitor because it
directed “its web site to travel-related services in
competition with the complainant and is deriving a financial benefit from such
direction and redirection of users to such sites, particularly, through banner
advertisements, pop-up windows and its affiliate relationships”); see also S.
Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent acted in
bad faith by attracting Internet users to a website that competes with the
complainant’s business).
Additionally,
the Panel infers that Respondent receives click-through fees for diverting
Internet users to competing car rental services. Since Respondent is using a domain name that is confusingly
similar to Complainant’s mark, consumers searching for Complainant online who
access Respondent’s domain name may become confused as to Complainant’s
affiliation with the resulting website.
Thus, the Panel finds that Respondent’s commercial use of the <cartechenterprise.com>
constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See 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)); see also eBay,
Inc v. Progressive Life Awareness Network, D2000-0068 (WIPO Mar. 16, 2001)
(finding bad faith where the respondent is taking advantage of the recognition
that eBay has created for its mark and therefore profiting by diverting users
seeking the eBay website to the respondent’s site).
Furthermore,
Respondent registered the <cartechenterprise.com> domain name with
constructive knowledge of Complainant’s rights in the ENTERPRISE mark due to
Complainant’s registration of the mark with the USPTO. Moreover, the Panel finds that Respondent
registered the disputed domain name with actual knowledge of Complainant’s
rights in the mark because of the obvious link between Complainant and the
content advertised on Respondent’s website.
Thus, Respondent registered and used the <cartechenterprise.com>
domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr.
17, 2000) (finding that evidence of bad faith includes actual or constructive
knowledge of a commonly known mark at the time of registration); see also
Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002)
(“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO,
a status that confers constructive notice on those seeking to register or use
the mark or any confusingly similar variation thereof.”); see also Pfizer,
Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the
link between the complainant’s mark and the content advertised on the
respondent’s website was obvious, the respondent “must have known about the
Complainant’s mark when it registered the subject domain name”).
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 <cartechenterprise.com> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
September 22, 2005
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