The Complainant has shown that it has rights in the United States registered mark ENTERPRISE CAR SALES for vehicle dealership services. The disputed domain name is confusingly similar to that mark, since it merely changes “car” to “cars” and “sales” to “sale” and adds the inconsequential generic top level domain identifier, “.com”.
As to legitimacy, the disputed domain name does not resolve to an active web page. Since it has been registered for such a short time, this alone is insufficient to establish absence of rights or legitimate interests in the disputed domain name on the part of the Respondent. However, when taken into account together with the absence from the WHOIS record of anything to indicate that the Respondent is commonly known as “Enterprise Cars Sale,” I conclude that the Respondent has not been commonly known by this name.
The Complainant asserts that it has not licensed or otherwise permitted the Respondent to use its ENTERPRISE CAR SALES mark or any similar term in connection with any goods or services or to apply for any domain name incorporating that mark and any similar term; and that the Respondent is not making any legitimate non-commercial or fair use of the disputed domain name. These assertions suffice to establish a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy 4(a)(ii). Accordingly, the burden shifts to the Respondent to show it does have rights or legitimate interests. The Respondent has made no attempt to do so and I therefore find that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
As to bad faith, according to paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, “[p]anels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.”
In the present case, I am satisfied that the Complainant’s trademark is well-known and widely used in the United States and that the registration of the disputed domain name by the Respondent, having an address in the United States, was for the purpose of attracting, for commercial gain, Internet users to a future website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of that website and any goods or services offered at such website.
Further, since the Respondent registered the disputed domain name using a privacy service. In a commercial context, this raises a rebuttable presumption of bad faith. See Capital One Financial Corp. v. DCH, FA 487835 (FORUM April 9, 2013) (concluding that “the fact Respondent originally registered the domain name with a privacy service in a commercial context raises the rebuttable presumption of bad faith registration and use…That fact alone sufficiently demonstrates bad faith registration and use). The Respondent has made no attempt to rebut that presumption.
I therefore conclude that the Respondent has registered and is using the disputed domain name in bad faith.
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