Enterprise Holdings, Inc. v. Zhichao Yang
Claim Number: FA2103001937651
Complainant is Enterprise Holdings, Inc. (“Complainant”), represented by Elizabeth Brock of Harness, Dickey & Pierce PLC, Michigan, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <enterpriseautoloan.com>, <enterpriseautofinancial.com>, <enterpriseautofnance.com>, <myenterpriseautofinance.com>, <enterprisesautofinance.com>, and <wwwenterpriseautofinance.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2021; the Forum received payment on March 23, 2021.
On March 24, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <enterpriseautoloan.com>, <enterpriseautofinancial.com>, <enterpriseautofnance.com>, <myenterpriseautofinance.com>, <enterprisesautofinance.com>, and <wwwenterpriseautofinance.com> domain names are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) 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 March 26, 2021, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 15, 2021 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@enterpriseautoloan.com, postmaster@enterpriseautofinancial.com, postmaster@enterpriseautofnance.com, postmaster@myenterpriseautofinance.com, postmaster@enterprisesautofinance.com, postmaster@wwwenterpriseautofinance.com. Also on March 26, 2021, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of, inter alia, the mark ENTERPRISE registered in the USA for vehicle related services with first use recorded as 1969. The Complainant has a licensed web site at <enterpriseautofinance.com>.
The Domain Names registered in 2020 are confusingly similar to the Complainant’s mark adding only generic terms or misspelling of generic terms and/or the letter ‘s’ and the gTLD “.com” which do not prevent said confusing similarity. They also appear to be typosquatted registrations targeting the Complainant’s licensed web site <enterpriseautofinance.com>.
The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
The Domain Names have been used for competing pay per click links which are not a bona fide offering of goods or services or a legitimate noncommercial or fair use, but divert Internet Users for commercial gain in bad faith.
Respondent has been the subject of many adverse decisions under the UDRP involving registration of domain names containing the trademarks of third parties.
Typosquatting is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the mark ENTERPRISE registered in the USA for vehicle related services with first use recorded as 1969. The Complainant has a licensed web site at <enterpriseautofinance.com>.
The Domain Names registered in 2020 have been used for pay per click links. The Respondent has been the subject of many adverse decisions under the Policy for registering domain names containing the trademarks of third parties.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Names consist of the Complainant's ENTERPRISE mark (which is registered, inter alia in USA for vehicle related services with first use recorded as 1969), generic words or misspellings of generic words and/or the letter ‘s’, and the gTLD “.com”.
Adding random letters to a trade mark in a domain name does not prevent confusing similarity between that domain name and mark. See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). Accordingly, the addition of the letter ‘s’ to the Complainant’s mark in <enterprisesautofinance.com> does not prevent confusing similarity between that domain name and the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms ‘auto’, ‘loan’, ‘my’, ‘www’, ‘financial’, ‘finance’ and/or a misspelling of finance ‘fnance’ to the Complainant's mark does not prevent confusing similarity between the Domain Names and the Complainant’s registered trade mark.
The gTLD “.com” does not serve to distinguish the Domain Names from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Names have been used for competing pay per click links which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries Inc v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
The Complainant has a licensed web site at <enterpriseautofinance.com>. The Domain Names appear to be intended as typosquatting registrations. Typosquatting can provide evidence that a respondent has no rights or legitimate interests in a disputed domain name. See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why he should be allowed to register domain names containing the Complainant’s mark and descriptive terms relating to the Complainant’s vehicle related services which indicates he is aware of the Complainant, its rights, business and services.
The Domain Names have been used for competing commercial pay per click links which is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web sites or services offered on them likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088 (Forum July 10, 2015) re diversion to pay per click links.
The Respondent has been the subject of a large number of adverse decisions under the Policy involving trademarks of third parties sufficient to show a pattern of activity and this is in the context of competing activity (see above). See also The Toronto-Dominion Bank v. Ryan G Foo / PPA Media Services / Jinesh Shah / Whois Privacy Corp. / Domain Administratory / Fundacion Private Whois / Domain Admin / Whois Privacy Corp, FA1408001576648 (Forum Jan. 12, 2015) (“The Panel determines that Respondent’s documented history of adverse UDRP rulings, as well as Respondent’s multiple registrations relating to Complainant’s marks, are independently sufficient to constitute a pattern as described by Policy ¶ 4(b)(ii).)
The Domain Names seek to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterpriseautoloan.com>, <enterpriseautofinancial.com>, <enterpriseautofnance.com>, <myenterpriseautofinance.com>, <enterprisesautofinance.com>, and <wwwenterpriseautofinance.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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