Case number | CAC-UDRP-101558 |
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Time of filing | 2017-06-06 12:54:19 |
Domain names | goenterpriseholdings.com |
Case administrator
Organization | Iveta Špiclová (Czech Arbitration Court) (Case admin) |
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Complainant
Organization | Enterprise Holdings, Inc. |
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Complainant representative
Organization | Harness, Dickey & Pierce, PLC |
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Respondent
Organization | Whois Privacy Corp. |
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Other Legal Proceedings
There are no other legal proceedings the Panel is aware of which are pending or decided and which relate to the disputed domain name.
Identification Of Rights
The Complainant, Enterprise Holdings, Inc. owns the following trade mark registrations:
European Union trade mark No. 008392623, registration date 1 January 2010, for ENTERPRISE HOLDINGS in classes 12, 35, 36, 37 and 39.
European Union trade mark No. 012925178, registration date 22 October 2014, for ENTERPRISE HOLDINGS in classes 12, 35, 36, 37and 39.
United States trade mark No. 3935731, registration date 22 March 2011, for ENTERPRISE HOLDINGS in class 39.
United States trade mark No. 4013322, registration date 16 August 2011, for ENTERPRISE HOLDINGS in class 35.
European Union trade mark No. 008392623, registration date 1 January 2010, for ENTERPRISE HOLDINGS in classes 12, 35, 36, 37 and 39.
European Union trade mark No. 012925178, registration date 22 October 2014, for ENTERPRISE HOLDINGS in classes 12, 35, 36, 37and 39.
United States trade mark No. 3935731, registration date 22 March 2011, for ENTERPRISE HOLDINGS in class 39.
United States trade mark No. 4013322, registration date 16 August 2011, for ENTERPRISE HOLDINGS in class 35.
Factual Background
FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:
The Complainant, Enterprise Holdings, Inc. is the owner of the registrations for the mark ENTERPRISE HOLDINGS in the European Union and the United States, as set out in the section "Identification of rights".
Enterprise Holdings, as Enterprise Rent-A-Car, Inc., started in the car hire business in 1974 and through its affiliates serves the daily rental needs of customers throughout the United States, Canada, Ireland, Germany and the United Kingdom
The Complainant’s corporate web site can be found via the enterpriseholdings.com domain name.
The web page to which the goenterpriseholdings.com domain name resolved on May 31, 2017 6 includes the following “Related Links”:
Job Openings Enterprise Car Rental
Career Opportunities Enterprise Truck
Enterprise Holdings Enterprise Holdings
Part Time Jobs Car Rental Car Rental
Training Jobs Enterprise.com
The goenterpriseholdings.com web site states at the top of the page:
"goenterpriseholdings.com – This website is for sale! – goenterpriseholdings Resources and Information".
Below the “Related Links” states:
"Buy this domain
The domain goenterpriseholdings.com may be for sale by its owner!"
The Complainant submitted with the Complaint the WHOIS record for goenterpriseholdings.com as of 23 May 2017, copies of records EUIPO showing the status and details regarding Complainant’s EU trade mark registrations for the ENTERPRISE HOLDINGS mark, copies of records from the U.S. Patent and Trademark Office for showing the status and details regarding Complainant’s U.S. registrations for the ENTERPRISE HOLDINGS mark, a copy of Enterprise Holdings web site, the WHOIS reports showing the record ownership of goenterpriseholdings.com on 1 November 2016 and 20 December 2016, a copy of the web page goenterpriseholdings.com on 31 May 2017, a copy of web page linked to by goenterpriseholdings.com where offers to buy the domain name could be made, as retrieved 31 May 2017, and ICANN’s Uniform Domain Name Dispute Resolution Policy.
The disputed domain name was initially registered on 22 December 2014.
The Complainant, Enterprise Holdings, Inc. is the owner of the registrations for the mark ENTERPRISE HOLDINGS in the European Union and the United States, as set out in the section "Identification of rights".
Enterprise Holdings, as Enterprise Rent-A-Car, Inc., started in the car hire business in 1974 and through its affiliates serves the daily rental needs of customers throughout the United States, Canada, Ireland, Germany and the United Kingdom
The Complainant’s corporate web site can be found via the enterpriseholdings.com domain name.
The web page to which the goenterpriseholdings.com domain name resolved on May 31, 2017 6 includes the following “Related Links”:
Job Openings Enterprise Car Rental
Career Opportunities Enterprise Truck
Enterprise Holdings Enterprise Holdings
Part Time Jobs Car Rental Car Rental
Training Jobs Enterprise.com
The goenterpriseholdings.com web site states at the top of the page:
"goenterpriseholdings.com – This website is for sale! – goenterpriseholdings Resources and Information".
Below the “Related Links” states:
"Buy this domain
The domain goenterpriseholdings.com may be for sale by its owner!"
The Complainant submitted with the Complaint the WHOIS record for goenterpriseholdings.com as of 23 May 2017, copies of records EUIPO showing the status and details regarding Complainant’s EU trade mark registrations for the ENTERPRISE HOLDINGS mark, copies of records from the U.S. Patent and Trademark Office for showing the status and details regarding Complainant’s U.S. registrations for the ENTERPRISE HOLDINGS mark, a copy of Enterprise Holdings web site, the WHOIS reports showing the record ownership of goenterpriseholdings.com on 1 November 2016 and 20 December 2016, a copy of the web page goenterpriseholdings.com on 31 May 2017, a copy of web page linked to by goenterpriseholdings.com where offers to buy the domain name could be made, as retrieved 31 May 2017, and ICANN’s Uniform Domain Name Dispute Resolution Policy.
The disputed domain name was initially registered on 22 December 2014.
Parties Contentions
COMPLAINANT:
The Complainant makes the following submissions.
1. Confusing similarity.
The Complainant’s submits that:
I. Registrations of the ENTERPRISE HOLDINGS mark in the European Union and the United States sufficiently establish its rights in the ENTERPRISE HOLDINGS mark pursuant to ICANN’s Uniform Dispute Resolution Policy (“Policy”) paragraph 4(a)(i). (See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003), finding that the “Complainant’s federal trade mark registrations establish Complainant’s rights in the BLIZZARD mark”. See also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003).) According to the current WHOIS record for the goenterpriseholdings.com.com domain name, the Respondent is located in the Bahamas. However, paragraph 4(a)(i) of the Policy does not require the Complainant to show registration in any particular location so long as it can establish rights in some jurisdiction. (See Enterprise Holdings, Inc. v. Balulesu Cristian, FA 1404548 (Nat. Arb. Forum Oct. 3, 2011), finding that Complainant’s registration for the ENTERPRISE mark in the United States sufficient to show rights with regard to the enterprisecarrentaltoday.com domain name owned by a resident of Romania. See also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction.)
II. The domain name goenterpriseholdings.com is confusingly similar to the Complainant’s registered ENTERPRISE HOLDINGS mark. The goenterpriseholdings.com domain name fully incorporates the Complainant’s ENTERPRISE HOLDINGS mark, merely adding the generic term “go” and the generic top level domain identifier, “.com.”
III. The incorporation of a trade mark in its entirety into a domain name is sufficient to establish that the domain name is identical or confusingly similar to a registered trademark. (See Hürriyet Gazetecilik ve Matbaacılık Anonim Şirketi v. Moniker Privacy Services / Kemal Demircioglu, D2010-1941 (WIPO Jan. 28, 2011), finding that “a domain name that reproduces the trade mark in its entirety is confusingly similar to the mark” when the disputed domain names <hürriyet.com>, <hürriyetemlak.com>, and <hürriyetoto.com> fully incorporated the complainant’s HURRIYET mark. See also, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, D2005-0941 (WIPO Oct. 20, 2005).)
IV. The addition of the generic term “go” to the goenterpriseholdings.com domain name does not distinguish it from the Complainant’s mark, but rather makes confusion all the more likely because the term “go” indicates that the domain name will resolve to an Enterprise Holdings web site. (See Spotify AB v. Haji Pacman, FA1701001713362 (Forum Feb. 21, 2017), finding gospotify.com to be confusingly similar to the trademark SPOTIFY.)
V. The removal of the spaces between the words in the goenterpriseholdings.com domain name does not prevent it from being confusingly similar to the Complainant’s ENTERPRISE HOLDINGS mark. (See State Farm Mutual Automobile Insurance Company v. James Schwehr / Affinity Luxury Car Rentals, FA1311001529030 (Nat. Arb Forum Dec. 19, 2013), finding that “Removing a space in a complainant’s mark does not sufficiently differentiate a disputed domain name from the registered mark”. See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007), finding that the elimination of spaces between terms and the addition of a gTLD does not establish distinctiveness from the complainant’s mark under paragraph 4(a)(i)) of the Policy.)
VI. The generic top level domain identifier “.com” is also insufficient to distinguish the goenterpriseholdings.com domain name from the Complainant’s ENTERPRISE HOLDINGS mark. (See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007), finding that “The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark”. See also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005), finding that “[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark”.)
VII. Three of four of the Complainant’s registrations for the ENTERPRISE HOLDINGS mark in the European Union and the United States predate the initial registration of the goenterpriseholdings.com domain name by at least three years and the Respondent’s ownership of the enterpriseholdings.com domain name by at least five years. The most recent registration issued two months before the initial registration of the goenterpriseholdings.com domain name and the Respondent’s ownership of the enterpriseholdings.com domain name by more than two years.
2. Rights to or Legitimate Interests.
The Complainant submits that the Respondent has no rights or legitimate interests in the goenterpriseholdings.com domain name and says:
I. On May 31, 2017, the web site at the goenterpriseholdings.com domain name resolved to a web page with a list of “Related Links” which consisted of links to the Complainant’s licensee’s web site, as well as links to web sites offering car rental services unrelated to the Complainant or its licensee. It also has what appear to be links to the Complainant, Enterprise Holdings, but are actually links to web sites unrelated to the Complainant.
II. A copy of the web page to which the goenterpriseholdings.com domain name resolved on May 31, 2017, shows the following “Related Links”:
Job Openings Enterprise Car Rental
Career Opportunities Enterprise Truck
Enterprise Holdings Enterprise Holdings
Part Time Jobs Car Rental Car Rental
Training Jobs Enterprise.com
The goenterpriseholdings.com web site also contained the following at the top:
"goenterpriseholdings.com – This website is for sale! – goenterpriseholdings Resources and Information"
and the following below the “Related Links”:
"Buy this domain
The domain goenterpriseholdings.com may be for sale by its owner!"
It has a link to a web page where a user could make an offer to purchase the goenterpriseholdings.com domain name. The web page linked to where offers to purchase the goenterpriseholdings.com domain name could be made.
III. In the light of the registration of the ENTERPRISE HOLDINGS mark by the Complainant, the Respondent cannot have any legitimate rights in the goenterpriseholdings.com domain name in connection with a site that serves only to generate revenue by re-directing Internet traffic to the Respondent’s pay-per-click web site and that also contains a general offer to sell the domain name.
IV. The Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy, paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii).( See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003), finding that the “Respondent’s use of a domain name confusingly similar to[the] Complainant’s mark(s) to divert Internet users to websites unrelated to [the] Complainant’s business does not represent a bona fide offering of goods or services under Policy, paragraph 4(c)(i) or a legitimate noncommercial or fair use under Policy, paragraph 4(c)(iii)”. See also Disney Eners., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003), finding that the respondent’s diversionary use of the complainant’s mark(s) to attract Internet users to its own web site was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
V. The WHOIS record according to the Registrar Verification lists “Domain Admin” as the Registrant and “Whois Privacy Corp.” as the Registrant Organization for the goenterpriseholdings.com domain name. The web site to which the goenterpriseholdings.com domain name resolves gives no indication that Respondent is known as, operating a business as, or advertising as “Go Enterprise Holdings.” There is nothing in the WHOIS record that would indicate the Respondent is or is commonly known as “Go Enterprise Holdings.” Previous panels have found that, in the absence of evidence submitted by the respondent, the WHOIS record is the sole piece of relevant evidence when determining what a respondent is commonly known as. (See Haas Automation, Inc. v. Machine Tools 24-7 / Jon Beal, FA1201001425055 (Nat. Arb. Forum Feb. 29, 2012), finding the “Respondent may well be known in the community as a vendor of used Haas equipment, but it has not shown that it is known as such by the name HAAS. The relevant evidence presented consists exclusively of the WHOIS information”. See also Disney Enterprises, Inc. v. online No.1 / OS1, FA 1307001512060 (Nat. Arb. Forum Sept. 13, 2013), stating: “the pertinent WHOIS information identifies the registrant of the domain name only as “online No. 1 / OS1,” which does not resemble the domain name. On this record, we conclude that [the] Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy, paragraph 4(c)(ii).”.)
VI. These facts strongly suggest that the Respondent is not known as or operating as “Go Enterprise Holdings,” but instead is attempting to use the goodwill generated by the ENTERPRISE HOLDINGS mark to drive Internet traffic to its web site through use of a confusingly similar domain name. Such use fails to establish a Policy, paragraph 4(c)(i) bona fide offering, or Policy, paragraph 4(c)(iii) legitimate noncommercial or fair use. (See U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Nat. Arb. Forum May 6, 2003), holding that the respondent’s use of the complainant’s mark and the goodwill surrounding that mark as a means of attracting Internet users to an unrelated business was not a bona fide offering of goods or services.)
VII. The Complainant has not licensed or otherwise permitted the Respondent to use its ENTERPRISE HOLDINGS mark in connection with any goods or services or to apply for any domain name incorporating the ENTERPRISE HOLDINGS mark. (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 prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question.)
VIII. The Respondent is clearly not making any legitimate noncommercial or fair use of goenterpriseholdings.com. Any claim in that regard is easily dismissed since the goenterpriseholdings.com web page is a generic type of web page commonly used by domain name owners seeking to monetize their domain names through “click-through” fees.
IX. The Complainant has its corporate web site at the domain name enterpriseholdings.com that highlights its operations including employment opportunities. It is clear that Respondent has no legitimate rights in the goenterpriseholdings.com domain name and, by the use of a confusingly similar domain name, is attempting to use the goenterpriseholdings.com domain name to drive Internet traffic to its goenterpriseholdings.com web site when Internet users are trying to reach the Enterprise Holdings web site. Such use constitutes a lack of rights or legitimate interest in the disputed domain name under ICANN Policy, paragraphs 4(c)(i) and (ii). (See Big Dog Holdings, Inc. v. Day, FA93554 (Nat. Arb. Forum Mar. 9, 2000), finding that there is no legitimate use when respondent was diverting consumers to its own web site by using complainant’s trade mark(s). See also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000), finding there was no rights or legitimate interest in the famous MSNBC mark where the respondent attempted to profit using complainant’s mark by redirecting Internet traffic to its own web site.)
X. Once the Complainant makes a prima facie case that the Respondent lacks rights and legitimate interests in the goenterpriseholdings.com domain name under Policy, paragraph 4(a)(ii), the burden shifts to the Respondent to show it does have rights or legitimate interests. (See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006), holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy, paragraph 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name. See also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006), finding that the Complainant must first make a prima facie showing that the Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If the Complainant satisfies its burden, then the burden shifts to the Respondent to show that it does have rights or legitimate interests in the subject domain names.)
3. Registered and used in Bad Faith.
The Complainant submits that the facts of record clearly support a finding that Respondent both registered and is using the goenterpriseholdings.com domain name in bad faith and says:
I. The Respondent’s registration of a domain name that merely adds the generic word “go”to the Complainant’s ENTERPRISE HOLDINGS mark for a web site that attempts to attract Internet users to that web site evidences a clear intent to trade upon the goodwill associated with the Complainant’s ENTERPRISE HOLDINGS mark. The Respondent is deliberately using a domain name that is confusingly similar to the Complainant’s marks to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site and the services offered at such web sites.
II. The web page to which the goenterpriseholdings.com domain name resolves is a “pay-per-click” web page. It contains online advertising that will provide someone, presumably the Respondent, with revenue from “click-through” fees from Internet users who find their way to the web page at goenterpriseholdings.com.
III. The business model based upon use of an infringing domain name to attract users to the Respondent’s web site is clear evidence that the Respondent registered and is using the goenterpriseholdings.com domain name in bad faith pursuant to Policy, paragraph 4(b)(iv). (See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002), finding that if a respondent profits from its diversionary use of a complainant’s mark when a domain name resolves to commercial web sites and that respondent fails to contest a complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy, paragraph 4(b)(iv)). See also State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000), finding that a respondent registered the domain name <statefarmnews.com> in bad faith because that respondent intended to use a complainant’s marks to attract the public to the web site without permission from that complainant).
IV. The very essence of setting up the goenterpriseholdings.com web site must be that it does result in commercial gain from Internet users accessing other web sites through the goenterpriseholdings.com web site. The Respondent may claim ignorance regarding the use being made of the goenterpriseholdings.com domain name. However, under the UDRP, absent a showing of some good faith attempt prior to receiving the UDRP complaint, to stop the inclusion of advertising or links which profit from trading on third-party trademarks, a domain name owner will be deemed responsible for content appearing on the web site at the domain names they own. This is true even if the owner is not exercising direct control over such content - for example, in the case of advertising links appearing on an "automatically" generated basis, such as may be the case here. (See Villeroy & Boch AG v. Mario Pingerma, D2007-1912 (WIPO February 14, 2008), finding that the domain owner responsible for parking page created by the Registrar even though the Respondent had no knowledge of the contents of the parking page’s contents.)
V. The fact that the goenterpriseholdings.com web page contains a link to a web page where an offer can be made to purchase the domain is additional evidence of the bad faith use of the goenterpriseholdings.com domain name. (See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), finding that even a general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy, paragraph 4(b)(i).)
VI. The Respondent registered the disputed domain name using a privacy service. In the commercial context, this raises a rebuttable presumption of bad faith. (See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1583409 (FORUM November 24, 2014), finding that registration of the disputed domain name using a privacy service “[i]n the commercial context…raises the rebuttable presumption of bad faith use and registration…[and] justifies a finding of bad faith registration and use.”). See also Capital One Financial Corp. v. DCH, FA 487835 (FORUM April 9, 2013), concluding that “the fact [the] 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.”). See also Orbitz Worldwide, LLC v. Kim Bum / No Company, FA 538678 (FORUM January 10, 2014), holding that using a privacy service in a commercial context raises a rebuttable presumption of bad faith registration and use.)
VII. The Respondent’s registration and use of the goenterpriseholdings.com domain name falls squarely within the parameters of ICANN Policy, paragraph 4(b)(iv). (See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002), finding that the respondent registered and used the domain name in bad faith pursuant to ICANN Policy, paragraph 4(b)(iv) because the respondent was using the confusingly similar domain to attract Internet users to its commercial web site. See also Mattel, Inc. v. .COM. Co., FA 12683 (Nat. Arb. Forum Dec. 2, 2002) citing Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000), finding that the “domain names are so obviously connected with the complainant that the use or registration by anyone other than complainant suggests ‘opportunistic bad faith’”.)
VIII. In summary, it cannot be disputed that the Complainant has well-recognized rights and goodwill in its ENTERPRISE HOLDINGS mark. The goenterpriseholdings.com domain name is confusingly similar to the Complainant’s ENTERPRISE HOLDINGS mark. The Respondent has no legitimate rights in the goenterpriseholdings.com domain name. The Respondent has registered and is using the goenterpriseholdings.com domain name to capitalize on the goodwill that the Complainant has developed in its ENTERPRISE HOLDINGS mark to drive Internet traffic inappropriately to other web sites for commercial gain.
RESPONDENT:
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
The Complainant makes the following submissions.
1. Confusing similarity.
The Complainant’s submits that:
I. Registrations of the ENTERPRISE HOLDINGS mark in the European Union and the United States sufficiently establish its rights in the ENTERPRISE HOLDINGS mark pursuant to ICANN’s Uniform Dispute Resolution Policy (“Policy”) paragraph 4(a)(i). (See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003), finding that the “Complainant’s federal trade mark registrations establish Complainant’s rights in the BLIZZARD mark”. See also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003).) According to the current WHOIS record for the goenterpriseholdings.com.com domain name, the Respondent is located in the Bahamas. However, paragraph 4(a)(i) of the Policy does not require the Complainant to show registration in any particular location so long as it can establish rights in some jurisdiction. (See Enterprise Holdings, Inc. v. Balulesu Cristian, FA 1404548 (Nat. Arb. Forum Oct. 3, 2011), finding that Complainant’s registration for the ENTERPRISE mark in the United States sufficient to show rights with regard to the enterprisecarrentaltoday.com domain name owned by a resident of Romania. See also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction.)
II. The domain name goenterpriseholdings.com is confusingly similar to the Complainant’s registered ENTERPRISE HOLDINGS mark. The goenterpriseholdings.com domain name fully incorporates the Complainant’s ENTERPRISE HOLDINGS mark, merely adding the generic term “go” and the generic top level domain identifier, “.com.”
III. The incorporation of a trade mark in its entirety into a domain name is sufficient to establish that the domain name is identical or confusingly similar to a registered trademark. (See Hürriyet Gazetecilik ve Matbaacılık Anonim Şirketi v. Moniker Privacy Services / Kemal Demircioglu, D2010-1941 (WIPO Jan. 28, 2011), finding that “a domain name that reproduces the trade mark in its entirety is confusingly similar to the mark” when the disputed domain names <hürriyet.com>, <hürriyetemlak.com>, and <hürriyetoto.com> fully incorporated the complainant’s HURRIYET mark. See also, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, D2005-0941 (WIPO Oct. 20, 2005).)
IV. The addition of the generic term “go” to the goenterpriseholdings.com domain name does not distinguish it from the Complainant’s mark, but rather makes confusion all the more likely because the term “go” indicates that the domain name will resolve to an Enterprise Holdings web site. (See Spotify AB v. Haji Pacman, FA1701001713362 (Forum Feb. 21, 2017), finding gospotify.com to be confusingly similar to the trademark SPOTIFY.)
V. The removal of the spaces between the words in the goenterpriseholdings.com domain name does not prevent it from being confusingly similar to the Complainant’s ENTERPRISE HOLDINGS mark. (See State Farm Mutual Automobile Insurance Company v. James Schwehr / Affinity Luxury Car Rentals, FA1311001529030 (Nat. Arb Forum Dec. 19, 2013), finding that “Removing a space in a complainant’s mark does not sufficiently differentiate a disputed domain name from the registered mark”. See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007), finding that the elimination of spaces between terms and the addition of a gTLD does not establish distinctiveness from the complainant’s mark under paragraph 4(a)(i)) of the Policy.)
VI. The generic top level domain identifier “.com” is also insufficient to distinguish the goenterpriseholdings.com domain name from the Complainant’s ENTERPRISE HOLDINGS mark. (See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007), finding that “The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark”. See also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005), finding that “[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark”.)
VII. Three of four of the Complainant’s registrations for the ENTERPRISE HOLDINGS mark in the European Union and the United States predate the initial registration of the goenterpriseholdings.com domain name by at least three years and the Respondent’s ownership of the enterpriseholdings.com domain name by at least five years. The most recent registration issued two months before the initial registration of the goenterpriseholdings.com domain name and the Respondent’s ownership of the enterpriseholdings.com domain name by more than two years.
2. Rights to or Legitimate Interests.
The Complainant submits that the Respondent has no rights or legitimate interests in the goenterpriseholdings.com domain name and says:
I. On May 31, 2017, the web site at the goenterpriseholdings.com domain name resolved to a web page with a list of “Related Links” which consisted of links to the Complainant’s licensee’s web site, as well as links to web sites offering car rental services unrelated to the Complainant or its licensee. It also has what appear to be links to the Complainant, Enterprise Holdings, but are actually links to web sites unrelated to the Complainant.
II. A copy of the web page to which the goenterpriseholdings.com domain name resolved on May 31, 2017, shows the following “Related Links”:
Job Openings Enterprise Car Rental
Career Opportunities Enterprise Truck
Enterprise Holdings Enterprise Holdings
Part Time Jobs Car Rental Car Rental
Training Jobs Enterprise.com
The goenterpriseholdings.com web site also contained the following at the top:
"goenterpriseholdings.com – This website is for sale! – goenterpriseholdings Resources and Information"
and the following below the “Related Links”:
"Buy this domain
The domain goenterpriseholdings.com may be for sale by its owner!"
It has a link to a web page where a user could make an offer to purchase the goenterpriseholdings.com domain name. The web page linked to where offers to purchase the goenterpriseholdings.com domain name could be made.
III. In the light of the registration of the ENTERPRISE HOLDINGS mark by the Complainant, the Respondent cannot have any legitimate rights in the goenterpriseholdings.com domain name in connection with a site that serves only to generate revenue by re-directing Internet traffic to the Respondent’s pay-per-click web site and that also contains a general offer to sell the domain name.
IV. The Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy, paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii).( See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003), finding that the “Respondent’s use of a domain name confusingly similar to[the] Complainant’s mark(s) to divert Internet users to websites unrelated to [the] Complainant’s business does not represent a bona fide offering of goods or services under Policy, paragraph 4(c)(i) or a legitimate noncommercial or fair use under Policy, paragraph 4(c)(iii)”. See also Disney Eners., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003), finding that the respondent’s diversionary use of the complainant’s mark(s) to attract Internet users to its own web site was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
V. The WHOIS record according to the Registrar Verification lists “Domain Admin” as the Registrant and “Whois Privacy Corp.” as the Registrant Organization for the goenterpriseholdings.com domain name. The web site to which the goenterpriseholdings.com domain name resolves gives no indication that Respondent is known as, operating a business as, or advertising as “Go Enterprise Holdings.” There is nothing in the WHOIS record that would indicate the Respondent is or is commonly known as “Go Enterprise Holdings.” Previous panels have found that, in the absence of evidence submitted by the respondent, the WHOIS record is the sole piece of relevant evidence when determining what a respondent is commonly known as. (See Haas Automation, Inc. v. Machine Tools 24-7 / Jon Beal, FA1201001425055 (Nat. Arb. Forum Feb. 29, 2012), finding the “Respondent may well be known in the community as a vendor of used Haas equipment, but it has not shown that it is known as such by the name HAAS. The relevant evidence presented consists exclusively of the WHOIS information”. See also Disney Enterprises, Inc. v. online No.1 / OS1, FA 1307001512060 (Nat. Arb. Forum Sept. 13, 2013), stating: “the pertinent WHOIS information identifies the registrant of the domain name only as “online No. 1 / OS1,” which does not resemble the domain name. On this record, we conclude that [the] Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy, paragraph 4(c)(ii).”.)
VI. These facts strongly suggest that the Respondent is not known as or operating as “Go Enterprise Holdings,” but instead is attempting to use the goodwill generated by the ENTERPRISE HOLDINGS mark to drive Internet traffic to its web site through use of a confusingly similar domain name. Such use fails to establish a Policy, paragraph 4(c)(i) bona fide offering, or Policy, paragraph 4(c)(iii) legitimate noncommercial or fair use. (See U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Nat. Arb. Forum May 6, 2003), holding that the respondent’s use of the complainant’s mark and the goodwill surrounding that mark as a means of attracting Internet users to an unrelated business was not a bona fide offering of goods or services.)
VII. The Complainant has not licensed or otherwise permitted the Respondent to use its ENTERPRISE HOLDINGS mark in connection with any goods or services or to apply for any domain name incorporating the ENTERPRISE HOLDINGS mark. (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 prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question.)
VIII. The Respondent is clearly not making any legitimate noncommercial or fair use of goenterpriseholdings.com. Any claim in that regard is easily dismissed since the goenterpriseholdings.com web page is a generic type of web page commonly used by domain name owners seeking to monetize their domain names through “click-through” fees.
IX. The Complainant has its corporate web site at the domain name enterpriseholdings.com that highlights its operations including employment opportunities. It is clear that Respondent has no legitimate rights in the goenterpriseholdings.com domain name and, by the use of a confusingly similar domain name, is attempting to use the goenterpriseholdings.com domain name to drive Internet traffic to its goenterpriseholdings.com web site when Internet users are trying to reach the Enterprise Holdings web site. Such use constitutes a lack of rights or legitimate interest in the disputed domain name under ICANN Policy, paragraphs 4(c)(i) and (ii). (See Big Dog Holdings, Inc. v. Day, FA93554 (Nat. Arb. Forum Mar. 9, 2000), finding that there is no legitimate use when respondent was diverting consumers to its own web site by using complainant’s trade mark(s). See also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000), finding there was no rights or legitimate interest in the famous MSNBC mark where the respondent attempted to profit using complainant’s mark by redirecting Internet traffic to its own web site.)
X. Once the Complainant makes a prima facie case that the Respondent lacks rights and legitimate interests in the goenterpriseholdings.com domain name under Policy, paragraph 4(a)(ii), the burden shifts to the Respondent to show it does have rights or legitimate interests. (See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006), holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy, paragraph 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name. See also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006), finding that the Complainant must first make a prima facie showing that the Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If the Complainant satisfies its burden, then the burden shifts to the Respondent to show that it does have rights or legitimate interests in the subject domain names.)
3. Registered and used in Bad Faith.
The Complainant submits that the facts of record clearly support a finding that Respondent both registered and is using the goenterpriseholdings.com domain name in bad faith and says:
I. The Respondent’s registration of a domain name that merely adds the generic word “go”to the Complainant’s ENTERPRISE HOLDINGS mark for a web site that attempts to attract Internet users to that web site evidences a clear intent to trade upon the goodwill associated with the Complainant’s ENTERPRISE HOLDINGS mark. The Respondent is deliberately using a domain name that is confusingly similar to the Complainant’s marks to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site and the services offered at such web sites.
II. The web page to which the goenterpriseholdings.com domain name resolves is a “pay-per-click” web page. It contains online advertising that will provide someone, presumably the Respondent, with revenue from “click-through” fees from Internet users who find their way to the web page at goenterpriseholdings.com.
III. The business model based upon use of an infringing domain name to attract users to the Respondent’s web site is clear evidence that the Respondent registered and is using the goenterpriseholdings.com domain name in bad faith pursuant to Policy, paragraph 4(b)(iv). (See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002), finding that if a respondent profits from its diversionary use of a complainant’s mark when a domain name resolves to commercial web sites and that respondent fails to contest a complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy, paragraph 4(b)(iv)). See also State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000), finding that a respondent registered the domain name <statefarmnews.com> in bad faith because that respondent intended to use a complainant’s marks to attract the public to the web site without permission from that complainant).
IV. The very essence of setting up the goenterpriseholdings.com web site must be that it does result in commercial gain from Internet users accessing other web sites through the goenterpriseholdings.com web site. The Respondent may claim ignorance regarding the use being made of the goenterpriseholdings.com domain name. However, under the UDRP, absent a showing of some good faith attempt prior to receiving the UDRP complaint, to stop the inclusion of advertising or links which profit from trading on third-party trademarks, a domain name owner will be deemed responsible for content appearing on the web site at the domain names they own. This is true even if the owner is not exercising direct control over such content - for example, in the case of advertising links appearing on an "automatically" generated basis, such as may be the case here. (See Villeroy & Boch AG v. Mario Pingerma, D2007-1912 (WIPO February 14, 2008), finding that the domain owner responsible for parking page created by the Registrar even though the Respondent had no knowledge of the contents of the parking page’s contents.)
V. The fact that the goenterpriseholdings.com web page contains a link to a web page where an offer can be made to purchase the domain is additional evidence of the bad faith use of the goenterpriseholdings.com domain name. (See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), finding that even a general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy, paragraph 4(b)(i).)
VI. The Respondent registered the disputed domain name using a privacy service. In the commercial context, this raises a rebuttable presumption of bad faith. (See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1583409 (FORUM November 24, 2014), finding that registration of the disputed domain name using a privacy service “[i]n the commercial context…raises the rebuttable presumption of bad faith use and registration…[and] justifies a finding of bad faith registration and use.”). See also Capital One Financial Corp. v. DCH, FA 487835 (FORUM April 9, 2013), concluding that “the fact [the] 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.”). See also Orbitz Worldwide, LLC v. Kim Bum / No Company, FA 538678 (FORUM January 10, 2014), holding that using a privacy service in a commercial context raises a rebuttable presumption of bad faith registration and use.)
VII. The Respondent’s registration and use of the goenterpriseholdings.com domain name falls squarely within the parameters of ICANN Policy, paragraph 4(b)(iv). (See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002), finding that the respondent registered and used the domain name in bad faith pursuant to ICANN Policy, paragraph 4(b)(iv) because the respondent was using the confusingly similar domain to attract Internet users to its commercial web site. See also Mattel, Inc. v. .COM. Co., FA 12683 (Nat. Arb. Forum Dec. 2, 2002) citing Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000), finding that the “domain names are so obviously connected with the complainant that the use or registration by anyone other than complainant suggests ‘opportunistic bad faith’”.)
VIII. In summary, it cannot be disputed that the Complainant has well-recognized rights and goodwill in its ENTERPRISE HOLDINGS mark. The goenterpriseholdings.com domain name is confusingly similar to the Complainant’s ENTERPRISE HOLDINGS mark. The Respondent has no legitimate rights in the goenterpriseholdings.com domain name. The Respondent has registered and is using the goenterpriseholdings.com domain name to capitalize on the goodwill that the Complainant has developed in its ENTERPRISE HOLDINGS mark to drive Internet traffic inappropriately to other web sites for commercial gain.
RESPONDENT:
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
Rights
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i)of the Policy).
No Rights or Legitimate Interests
The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii)of the Policy).
Bad Faith
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
Procedural Factors
The Complaint was initially transmitted to (CAC) on 1 June 2017. The same day the CAC sent a request for registrar verification for the disputed domain name.
On 7 June 2017, the Complainant was notified of deficiencies in Complaint: it did not sufficiently identify the Respondent, and had not identified the correct Registrar. The same day the Complainant filed an amended Complaint.
By Non-standard communication dated 4 July 2017, the Case administrator stated:
"Please be aware that neither the written notice of the Complaint nor the advice of delivery thereof was returned to the Czech Arbitration Court. The CAC is therefore unaware whether the written notice was received by the Respondent or not.
The e-mail notice sent to postmaster@goenterpriseholdings.com and to goenterpriseholdings.com-owner-wr3o@customers.whoisprivacycorp.com was returned back undelivered as the e-mail addresses had permanent fatal errors - (please find the notifications enclosed). The e-mail notice was also sent to goenterpriseholdings.com-owner-lhrr@customers.whoisprivacycorp.com, goenterpriseholdings.com-admin-5l20@customers.whoisprivacycorp.com (WHOIS admin contact) and to goenterpriseholdings.com-tech-v8ol@customers.whoisprivacycorp.com (WHOIS technical contact), but the CAC never received any proof of delivery or notification of undelivery.
No further e-mail address could be found on the disputed site (please find the screenshot enclosed).
The Respondent never accessed the online platform."
The Provider has also sent notice of the Complaint to goenterpriseholidings.com-admin-agv4customers.whoisprivacy.com and to goenterpriseholdings.com-tech-hky1@customer.whoisprivacycorp.com, which are the Whois Admin contact and the Whois Technical contact shown in the Registrar verification of 5 June 2107. On 19 July 2017 the Provider received notification that those email addresses had permanent fatal errors.
The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
On 7 June 2017, the Complainant was notified of deficiencies in Complaint: it did not sufficiently identify the Respondent, and had not identified the correct Registrar. The same day the Complainant filed an amended Complaint.
By Non-standard communication dated 4 July 2017, the Case administrator stated:
"Please be aware that neither the written notice of the Complaint nor the advice of delivery thereof was returned to the Czech Arbitration Court. The CAC is therefore unaware whether the written notice was received by the Respondent or not.
The e-mail notice sent to postmaster@goenterpriseholdings.com and to goenterpriseholdings.com-owner-wr3o@customers.whoisprivacycorp.com was returned back undelivered as the e-mail addresses had permanent fatal errors - (please find the notifications enclosed). The e-mail notice was also sent to goenterpriseholdings.com-owner-lhrr@customers.whoisprivacycorp.com, goenterpriseholdings.com-admin-5l20@customers.whoisprivacycorp.com (WHOIS admin contact) and to goenterpriseholdings.com-tech-v8ol@customers.whoisprivacycorp.com (WHOIS technical contact), but the CAC never received any proof of delivery or notification of undelivery.
No further e-mail address could be found on the disputed site (please find the screenshot enclosed).
The Respondent never accessed the online platform."
The Provider has also sent notice of the Complaint to goenterpriseholidings.com-admin-agv4customers.whoisprivacy.com and to goenterpriseholdings.com-tech-hky1@customer.whoisprivacycorp.com, which are the Whois Admin contact and the Whois Technical contact shown in the Registrar verification of 5 June 2107. On 19 July 2017 the Provider received notification that those email addresses had permanent fatal errors.
The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
Principal Reasons for the Decision
Procedural aspects
It is generally accepted among UDRP panelists that a complainant or provider who has correctly sent a UDRP case communication to the WhoIs-listed registrant of a disputed domain name, will in the absence of better information normally have discharged its communication responsibility under the UDRP Rules. This view has been confirmed in CAC Case No. 101452 Boehringer Ingelheim Vetmedica GmbH v Whois Privacy Corp. The Panel agrees that this is the correct approach.
The Panel is satisfied that the Provider has used reasonable available means calculated to achieve actual notice of the Complaint on the Respondent.
Under Paragraph 15 of the Rules, the Panel must decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4 (a) of the Policy requires the Complainant to prove each of the following three elements:
(i) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complaint has rights.
(ii) The Respondent has no rights or legitimate interests in the disputed domain name.
(iii) The disputed domain name has been registered and used in bad faith.
(i) Identical or confusingly similar
The Complainant is the owner of the trade mark ENTERPRISE HOLDINGS, as outlined under "Identification of rights" above.
The disputed domain name is comprised of the Complainant’s trade mark ENTERPRISE HOLDINGS in its entirety, plus the addition of the prefix "go" and the suffix .com. The most distinctive part of the disputed domain name is the Complainant’s mark ENTERPRISE HOLDINGS. The addition of the generic "go" and the suffix .com, and the removal of spaces between words do not prevent the disputed domain name being confusingly similar to the Complainant’s trade mark ENTERPRISE HOLDINGS.
In reaching its decision the Panel has relied on Rockwool International A/S v usrockwool/US Rockwool LLC, formerly US Fireproofing LLC (WIPO Case no. D2013-1022)
.
The Panel finds that the disputed domain name <goenterpriseholdings.com> is confusingly similar to the Complainant’s trade mark ENTERPRISE HOLDINGS.
(ii) No rights or legitimate interest in the disputed domain name
The Complainant asserts that the Respondent has no rights or interests in the disputed domain name.
The web site to which the disputed domain name points has a list of “Related Links” which consisted of links to the Complainant’s licensee’s web site, as well as links to web sites offering car rental services unrelated to the Complainant or its licensee. It also links to a web page where a user could make an offer to purchase the disputed domain name.
The Respondent is not licensed to use the Complainant's ENTERPRISE HOLDINGS trade mark. There is nothing to indicate that the Respondent is using the disputed domain name use in connection with a bona fide offering of goods or services, or making a legitimate non-commercial or fair use of the name, or is commonly known by that name.
The overall impression is that the disputed a domain name is confusingly similar to the Complainant’s trade mark and is being used to divert Internet users to websites unrelated to the Complainant’s business.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or a legitimate interest in the disputed domain name. The burden now shifts the Respondent to show that it does have rights or a legitimate interest. (See paragraph 4(a) (ii) of the Policy.)
The Respondent has not filed a Response and has not contested any of the Complainant’s submissions, nor provided any evidence of any rights or legitimate interests in the disputed domain name.
Panel finds that the Respondent does not have any rights or legitimate interest in the disputed domain name.
(iii) The disputed domain name has been registered and is being used in bad faith
Complainant has well-recognized rights in its ENTERPRISE HOLDINGS trade mark. The website using the disputed domain name goenterpriseholdings.com has links to web sites offering car rental services unrelated to the Complainant, and has links to a web page where a user could make an offer to purchase the disputed domain name.
There appears no reason why the Respondent would register the disputed domain name, which incorporates the Complainant’s mark ENTERPRISE HOLDINGS, other than to create the impression that it is connected to the Complainant's business to capitalize on the goodwill in the Complaint's ENTERPRISE HOLDINGS trade mark in order to attract, for commercial gain Internet users to that site (See paragraphs 4(b)(i) and (iv) of the Policy.)
The Panel finds that the disputed domain name was registered and is being used in bad faith.
It is generally accepted among UDRP panelists that a complainant or provider who has correctly sent a UDRP case communication to the WhoIs-listed registrant of a disputed domain name, will in the absence of better information normally have discharged its communication responsibility under the UDRP Rules. This view has been confirmed in CAC Case No. 101452 Boehringer Ingelheim Vetmedica GmbH v Whois Privacy Corp. The Panel agrees that this is the correct approach.
The Panel is satisfied that the Provider has used reasonable available means calculated to achieve actual notice of the Complaint on the Respondent.
Under Paragraph 15 of the Rules, the Panel must decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4 (a) of the Policy requires the Complainant to prove each of the following three elements:
(i) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complaint has rights.
(ii) The Respondent has no rights or legitimate interests in the disputed domain name.
(iii) The disputed domain name has been registered and used in bad faith.
(i) Identical or confusingly similar
The Complainant is the owner of the trade mark ENTERPRISE HOLDINGS, as outlined under "Identification of rights" above.
The disputed domain name is comprised of the Complainant’s trade mark ENTERPRISE HOLDINGS in its entirety, plus the addition of the prefix "go" and the suffix .com. The most distinctive part of the disputed domain name is the Complainant’s mark ENTERPRISE HOLDINGS. The addition of the generic "go" and the suffix .com, and the removal of spaces between words do not prevent the disputed domain name being confusingly similar to the Complainant’s trade mark ENTERPRISE HOLDINGS.
In reaching its decision the Panel has relied on Rockwool International A/S v usrockwool/US Rockwool LLC, formerly US Fireproofing LLC (WIPO Case no. D2013-1022)
.
The Panel finds that the disputed domain name <goenterpriseholdings.com> is confusingly similar to the Complainant’s trade mark ENTERPRISE HOLDINGS.
(ii) No rights or legitimate interest in the disputed domain name
The Complainant asserts that the Respondent has no rights or interests in the disputed domain name.
The web site to which the disputed domain name points has a list of “Related Links” which consisted of links to the Complainant’s licensee’s web site, as well as links to web sites offering car rental services unrelated to the Complainant or its licensee. It also links to a web page where a user could make an offer to purchase the disputed domain name.
The Respondent is not licensed to use the Complainant's ENTERPRISE HOLDINGS trade mark. There is nothing to indicate that the Respondent is using the disputed domain name use in connection with a bona fide offering of goods or services, or making a legitimate non-commercial or fair use of the name, or is commonly known by that name.
The overall impression is that the disputed a domain name is confusingly similar to the Complainant’s trade mark and is being used to divert Internet users to websites unrelated to the Complainant’s business.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or a legitimate interest in the disputed domain name. The burden now shifts the Respondent to show that it does have rights or a legitimate interest. (See paragraph 4(a) (ii) of the Policy.)
The Respondent has not filed a Response and has not contested any of the Complainant’s submissions, nor provided any evidence of any rights or legitimate interests in the disputed domain name.
Panel finds that the Respondent does not have any rights or legitimate interest in the disputed domain name.
(iii) The disputed domain name has been registered and is being used in bad faith
Complainant has well-recognized rights in its ENTERPRISE HOLDINGS trade mark. The website using the disputed domain name goenterpriseholdings.com has links to web sites offering car rental services unrelated to the Complainant, and has links to a web page where a user could make an offer to purchase the disputed domain name.
There appears no reason why the Respondent would register the disputed domain name, which incorporates the Complainant’s mark ENTERPRISE HOLDINGS, other than to create the impression that it is connected to the Complainant's business to capitalize on the goodwill in the Complaint's ENTERPRISE HOLDINGS trade mark in order to attract, for commercial gain Internet users to that site (See paragraphs 4(b)(i) and (iv) of the Policy.)
The Panel finds that the disputed domain name was registered and is being used in bad faith.
For all the reasons stated above, the Complaint is
Accepted
and the disputed domain name(s) is (are) to be
- GOENTERPRISEHOLDINGS.COM: Transferred
PANELLISTS
Name | Mrs Veronica Bailey |
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Date of Panel Decision
2017-07-20
Publish the Decision