Westmore · UDRP DecisionEnterpriseautosales.net
The Panel ordered transfer of <enterpriseautosales.net>. It found the domain confusingly similar to the Complainant’s ENTERPRISE and E ENTERPRISE CAR SALES marks because it combined ENTERPRISE with the descriptive phrase “auto sales.” The Respondent provided no evidence of rights or legitimate interests. Bad faith was found from the domain’s use for automobile-related sponsored links, including links appearing to compete with services offered under the Complainant’s marks, with the apparent intention of generating click-through revenue through consumer confusion.
The timeline behind enterpriseautosales.net
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind enterpriseautosales.net — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a domain combining a trademark with wording that directly describes the trademark owner’s services may strengthen rather than dispel the association with the trademark owner. It also shows the evidentiary importance of industry-related sponsored links and the consequences of failing to rebut a prima facie case concerning rights or legitimate interests.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Enterprise Holdings, Inc. v. Enterprise Auto Sales, Ruben Leyva Castro Case No. D2013-2016 1. The Parties Complainant is Enterprise Holdings, Inc. of St. Louis, Missouri, United States of America, represented by Harness, Dickey & Pierce, PLC, United States of America. Respondent is Enterprise Auto Sales, Ruben Leyva Castro of Los Angeles, California, United States of America. 2. The Domain Name and Registrar The disputed domain name <enterpriseautosales.net> is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2013. On November 26, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 28, 2013, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 4, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 24, 2013. Respondent did not submit a Response. Accordingly, the Center notified Respondent’s default on December 27, 2013. The Center appointed Carol Anne Been as the sole panelist in this matter on January 15, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainant provided evidence from the United States Patent and Trademark Office demonstrating its ownership of United States trademark registrations for the word mark ENTERPRISE and the design mark E ENTERPRISE CAR SALES, which were issued in 1985 and 1997, respectively. The description of services covered by both registrations includes “automotive dealership services.” Complainant alleges that it licenses these trademarks to two operating companies, one of which operates an online auto sales website at ˂enterprisecarsales.com˃ and ˂enterpriseautosales.com˃. Complainant provided a copy of the home page at “www.enterprisecarsales.com” evidencing automotive dealership services. The disputed domain name was created on September 8, 2013, according to the WhoIs record. According to the WhoIs record for the disputed domain name, Respondent is located in California, United States. The disputed domain name is used for sponsored links relating to automobiles, as is evidenced from the November 24, 2013, image of the website at the disputed domain name provided by Complainant. 5. Parties’ Contentions A. Complainant Complainant alleges that the disputed domain name is identical or confusingly similar to its ENTERPRISE and E ENTERPRISE CAR SALES trademarks. Complainant alleges that the ENTERPRISE and E ENTERPRISE CAR SALES trademarks are well-known in the vehicle rental and used vehicle sales business and estimates that 90% of the American population lives within 15 miles of an “Enterprise” location. Complainant further alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Complainant has established that it holds rights in the trademarks ENTERPRISE and E ENTERPRISE CAR SALES and that its licensees use such trademarks in connection with car sales. The phrase “car sales” is descriptive of Complainant’s services rendered through its licensees. Similarly, “auto sales,” which has the same meaning as “car sales,” is descriptive of Complainant’s services rendered through its licensees. The disputed domain name consists of Complainant’s ENTERPRISE mark, followed by the descriptive phrase “auto sales.” The disputed domain name also consists of Complainant’s E ENTERPRISE CAR SALES mark, less the letter “e” and substituting the word “auto” for the word “car.” The addition of a descriptive term that describes the services offered by Complainant under its mark does not avoid the confusing similarity of the disputed domain name with Complainant’s trademark. See, e.g., eBay Inc. v. ebayMoving / Izik Apo, WIPO Case No. D2006-1307 (“It is a well-established principle that descriptive or generic additions to a trademark, and particularly those that designate the goods or services with which the mark is used, do not avoid confusing similarity of domain names and trademarks”). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademarks. B. Rights or Legitimate Interests Respondent has not provided any evidence of circumstances to demonstrate rights or legitimate interests in the disputed domain name. Complainant alleges that despite Respondent registering the disputed domain name under the name Enterprise Auto Sales, there is nothing to indicate that such a business actually exists except as the owner of the disputed domain name. Complainant provides evidence suggesting that Respondent is doing business as “Figueroa Motors Inc.” at the address provided for Respondent in the WhoIs record for the disputed domain name. Complainant thus argues that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to the Policy. Further, when the disputed domain name was registered in 2013, Respondent had constructive knowledge of Complainant’s pre-existing trademark rights and registrations under United States trademark law. See , e.g., Champion Broadcasting System, Inc. v. Nokta Internet Technologies , WIPO Case No. D2006-0128 (“The Panel notes that both parties are located in the USA and the principle of constructive notice can be applied in accordance with the Rules, Paragraph 15”). Respondent has failed to rebut such evidence by providing the Panel with any evidence to show that Respondent has rights or legitimate interests in the disputed domain name. See , e.g., The Vanguard Group, Inc. v. Lorna Kang , WIPO Case No. D2002-1064 (“A number of panels have held that the burden on a complainant regarding the second element is necessarily light, because the nature of the registrant’s rights or interests, if any, in the domain name lies most directly within the registrant’s knowledge. Other panels have held that once the complainant makes a prima facie showing that the registrant does not have rights or legitimate interest in the domain name, the evidentiary burden shifts to the registrant to rebut the showing by providing evidence of its rights or interests in the domain name”); Allianz, Compañía de Seguros y Reaseguros S.A. v. John Michael , WIPO Case No. D2009-0942 (“In short, Complainant has satisfied its burden of providing sufficient evidence to show that Respondent lacks rights to or legitimate interests in the disputed domain name, and Respondent has failed to provide the Panel with any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain names”). Thus, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Evidence of bad faith arises when, among other things, a respondent, by using the domain name, attempts to attract, for commercial gain, users to its website by creating a likelihood of confusion with the complainant’s mark. In this case, Respondent uses the disputed domain name in a manner that is likely to capture traffic from consumers looking for Complainant’s websites and to direct such consumers instead to Respondent’s website associated with the disputed domain name. The website at the disputed domain name posts sponsored links for websites, some of which appear to compete with services rendered under Complainant’s trademarks through its licensees, with the apparent intention of generating “click-through revenue” for Respondent. See , e.g., Villeroy & Boch AG v. Mario Pingerna , WIPO Case No. D2007-1912 (“The Respondent’s use of the disputed domain name with the intention to attract Internet users for commercial gain is established by the sponsored links and pop-up advertisements on its website”). Absent any statement from Respondent to the contrary, the Panel may infer that Respondent cannot refute Complainant’s allegations of bad faith. See , e.g., The Vanguard Group v. Lorna King , supra (“There is no direct evidence that the Respondent knew of Complainant or its VANGUARD trademark, or intended to use the disputed domain name to confuse and divert Internet users. Nevertheless, the Respondent’s knowledge and intention may be determined by common sense inferences from circumstantial evidence”). Thus, the Panel finds that Respondent registered and is using the disputed domain name in bad faith. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <enterpriseautosales.net> be transferred to Complainant. Carol Anne Been Sole Panelist Date: January 29, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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