Enterprise Holdings, Inc. v. Assaf Shaked
Claim Number: FA2209002011905
Complainant is Enterprise Holdings, Inc. ("Complainant"), represented by Joel R. Samuels of Harness, Dickey & Pierce, PLC, Missouri, USA. Respondent is Assaf Shaked ("Respondent"), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enterpriseccarsales.com>, registered with Porkbun 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 13, 2022; Forum received payment on September 13, 2022.
On September 14, 2022, Porkbun LLC confirmed by email to Forum that the <enterpriseccarsales.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun LLC 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 September 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@enterpriseccarsales.com. Also on September 19, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 19, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Complainant owns the ENTERPRISE and ENTERPRISE CAR SALES marks, which it and related entities have used for many years in connection with various vehicle-related services in the United States and other countries. Complainant owns numerous trademark registrations for these marks, including United States registrations for both marks in standard character form.
The disputed domain name <enterpriseccarsales.com> was registered in December 2021. The name is registered in the name of a privacy registration service on behalf of Respondent. It is being used to redirect visitors to Complainant's licensee's website at <enterprisecarsales.com>. Complainant asserts that Respondent is holding itself out as Complainant for financial gain. (Complainant suggests that Respondent may be receiving clickthrough fees or using the domain name in connection with a fraudulent phishing scheme.) Complainant states that Respondent is not commonly known by the domain name, has no relationship with Complainant, and is not licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <enterpriseccarsales.com> is confusingly similar to its ENTERPRISE CAR SALES mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <enterpriseccarsales.com> incorporates Complainant's registered ENTERPRISE CAR SALES trademark, omitting the spaces, inserting an additional letter "C," and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Enterprise Holdings, Inc. v. 846 Now, FA 1991698 (Forum May 13, 2022) (finding <enterprisecarsales.me> identical to ENTERPRISE CAR SALES); Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (finding <enterprizecarsforsale.com> and <enterpirsecarsales.com> confusingly similar to ENTERPRISE CAR SALES); Enterprise Holdings, Inc. v. SearchGuide Inc. c/o Sean Thorne, FA 1570080 (Forum Aug. 11, 2014) (finding <enterprisecarsals.com> confusingly similar to ENTERPRISE CAR SALES). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to redirect users to Complainant's licensee's website. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Morgan Stanley v. Wei Yang, FA 1947212 (Forum June 18, 2021) (finding lack of rights or interests arising from redirection to complainant's website); Board of Regents of University of Texas System v. JASPER JUHL / BITSWAT LLC, FA 1730192 (Forum June 13, 2017) (same); Direct Line Insurance plc v. Low-cost-domain c/o Daniel Stubbs, FA 1337658 (Forum Sept. 8, 2010) (same); Travelocity.com LP v. Crystal Image Pty Ltd et al., FA 1337670 (Forum Sept. 6, 2010) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to a misspelled version of Complainant's mark, in an obvious instance of typosquatting. The domain name is being used to redirect users to Complainant's licensee's website, allegedly for commercial gain; and Respondent has neither disputed Complainant's claims nor offered any alternative explanation. These circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Morgan Stanley v. Wei Yang, supra (finding bad faith in similar circumstances); Board of Regents of University of Texas System v. JASPER JUHL / BITSWAT LLC, supra (same); Direct Line Insurance plc v. Low-cost-domain c/o Daniel Stubbs, supra (same); Travelocity.com LP v. Crystal Image Pty Ltd et al., supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <enterpriseccarsales.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 20, 2022
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