Enterprise Rent-A-Car Company v. Wan-Fu China, Ltd.
Claim Number: FA0703000934715
Complainant is Enterprise Rent-A-Car Company (“Complainant”), represented by Vicki
L. Little, of Schultz & Little, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wnterprisecarsales.com>, registered with Belgiumdomains, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 2, 2007 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@wnterprisecarsales.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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
<wnterprisecarsales.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <wnterprisecarsales.com> domain name.
3. Respondent registered and used the <wnterprisecarsales.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Enterprise
Rent-A-Car Company, is a well-known provider of vehicle rental, leasing and
sales services. Complainant has used its
Respondent registered the <wnterprisecarsales.com>
domain name on
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.
The Panel finds that Complainant’s registration with the
USPTO sufficiently establishes Complainant’s rights in the
Respondent’s <wnterprisecarsales.com>
domain name is confusingly similar to Complainant’s ENTERPRISE mark under
Policy ¶ 4(a)(i), as it changes the first letter “e” in the mark to a “w” and
adds the common terms “car” and “sales” to the end of the mark. The spelling change takes advantage of a
common typing error, as the letters “e” and “w” are adjacent on the
keyboard. Moreover, neither the addition
of terms which describe an aspect of Complainant’s business, nor the addition
of a generic top-level domain (“gTLD”), sufficiently distinguishes the disputed
domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Neuberger Berman Inc. v. Jacobsen,
D2000-0323 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and
legitimate interests in the <wnterprisecarsales.com>
domain name. Complainant must
first make a prima facie case in
support of its allegations and the burden then shifts to Respondent to show it
does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See
Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
D2001-0376 (WIPO
Complainant asserts that Respondent is not authorized to use
Complainant’s mark and that Respondent is not associated with Complainant in
any way. Furthermore, Respondent’s WHOIS
information does not indicate that it is commonly known by the <wnterprisecarsales.com> domain name
and there is no other information in the record to indicate that Respondent is
or has ever been known by the disputed domain name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
Respondent is using the <wnterprisecarsales.com> domain name to operate a website that displays hyperlinks to various third-party websites that are in direct competition with Complainant, as well as to Complainant’s own website, presumably for Respondent’s own commercial benefit through the accrual of click-through fees. Such use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel further finds that Respondent’s lack of rights and
legitimate interests in the disputed domain name is evidenced by the
typosquatted nature of the disputed domain name, as the disputed domain name
takes advantage of a common typing error by replacing the letter “e” at the
beginning of Complainant’s mark with the letter “w,” which is next to the
letter “e” on the keyboard. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat.
Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights
and legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has alleged that Respondent has acted in bad faith by registering and using the <wnterprisecarsales.com> domain name. Based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for the links displayed on the website that resolves from the disputed domain name. Such commercial benefit constitutes bad faith registration and use under Policy ¶ 4(b)(iv). Additionally, the Panel finds that Respondent’s disputed domain name is capable of creating a likelihood of confusion as to Complainant’s source and affiliation with the <wnterprisecarsales.com> domain name and corresponding website, which is further evidence of bad faith registration and use. See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); 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 additionally finds that the disputed domain name
contains a typosquatted version of Complainant’s mark, which is itself evidence
of bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum
Moreover, the Panel finds bad faith registration and use
under Policy ¶ 4(b)(ii) as Respondent has previously
been the respondent in several other UDRP proceedings in which the disputed
domain names were transferred from Respondent to the respective complainants in
those proceedings. See Popular Enters., LLC v. Wan-Fu China, Ltd.,
FA 892424 (Nat. Arb. Forum
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 <wnterprisecarsales.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: April 24, 2007
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