DECISION

Enterprise Rent-A-Car Company v. Terri Aldridge

Claim Number:  FA0308000190507

PARTIES

Complainant is Enterprise Rent-A-Car Company, St. Louis, MO (“Complainant”) represented by Vicki L. Little, of Schultz & Little, L.L.P. Respondent is Terri Aldridge, Port Allen, LA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <enterprisecarsales.net>, registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 22, 2003; the Forum received a hard copy of the Complaint on August 25, 2003.

On August 27, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <enterprisecarsales.net> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On August 27, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 16, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@enterprisecarsales.net by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On September 29, 2003 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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."  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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <enterprisecarsales.net> domain name is identical to Complainant’s ENTERPRISE CAR SALES mark.

2. Respondent does not have any rights or legitimate interests in the <enterprisecarsales.net> domain name.

3. Respondent registered and used the <enterprisecarsales.net> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Enterprise Rent-A-Car Company, has registered and used various marks incorporating the ENTERPRISE mark since 1985 to denote its vehicle rental, leasing, and sales services (e.g. U.S. Reg. No. 1,343,167 for the ENTERPRISE mark; U.S. Reg. No. 2,371,192 for the ENTERPRISE RENT-A-CAR mark; U.S. Reg. No. 2,192,909 for the ENTERPRISE 1 800 CAR SALES mark). On April 15, 1997, Complainant registered the ENTERPRISE CAR SALES mark (U.S. Reg. No. 2,052,193) for use in connection with automobile dealership services. Along with its registration of the ENTERPRISE CAR SALES mark, Complainant registered the <enterpriserentacar.com> domain name on August 20, 1996 and the <enterprise.com> domain name two years later, and has used both domain names continuously since that time.

Respondent, Terri Aldridge, registered the <enterprisecarsales.net> domain name on February 15, 2000, without license or authorization to use Complainant’s ENTERPRISE CAR SALES mark for any purpose. Respondent does not use the disputed domain name.

DISCUSSION

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."

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(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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.

Identical and/or Confusingly Similar

Complainant has established rights in the ENTERPRISE CAR SALES mark through registration of the mark with the U.S. Patent and Trademark Office. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”).

Respondent’s <enterprisecarsales.net> domain name is identical to Complainant’s ENTERPRISE CAR SALES mark, as it entirely incorporates Complainant’s registered mark. The only differences between the domain name and Complainant’s mark (the elimination of the spaces between the words of the mark and the addition of a top-level domain name) are administrative features of the DNS and are thus forced upon Respondent by the nature of the domain-naming system. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants").

Accordingly, the Panel finds that the <enterprisecarsales.net> domain name is identical to Complainant’s ENTERPRISE CAR SALES mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has made no use of the disputed domain name, and did not submit a response to the Complaint to explain its non-use of the domain name. The Panel finds that Respondent has not made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). Respondent has also not made a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). Thus, these provisions of the Policy do not apply to Respondent. See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where Respondent failed to submit a Response to the Complaint and had made no use of the domain name in question); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names, and no use of the domain names has been established).

No evidence before the Panel implies that Respondent has ever been “commonly known by” the name ENTERPRISECARSALES. Therefore, the Panel finds that Policy ¶ 4(c)(ii) does not apply to Respondent. See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail")

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <enterprisecarsales.net> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent has not made use of the disputed domain name. Given the fact that it is identical to Complainant’s ENTERPRISE CAR SALES mark, the Panel not only finds that the disputed domain name was registered in bad faith, but that Respondent’s passive holding of that domain name amounts to bad faith use under the Policy. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (finding that “it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith”); see also Mondich & Am. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that Respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).

The Panel thus finds that Respondent registered and used the <enterprisecarsales.net> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <enterprisecarsales.net> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  October 13, 2003

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