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Domain Name Transferred in Split Decision under CIRA Dispute Resolution Policy
On August 22, 2005, a three member panel for the British Columbia International Commercial Arbitration Centre rendered a rare split decision in Enterprise Rent-A-Car Company v. Ebenezer Thevasagayam. The two-member majority ordered that <entreprise.ca> be transferred to the well-known Complainant rental car company.
The Registrant operated a pay-per-click business through which Internet users searching for services in a variety of categories, including “car rental” services, could follow links on the Registrant’s website to paying sponsors.
With regard to each of the three branches of the three-part test under the Dispute Resolution Policy (the “Policy”), two of the three members on the panel found that: (i) the domain name (based on the French word for “enterprise”) was confusing with the complainant’s trade-marks from the perspective of the average consumer with imperfect recollection (i.e. the traditional test applied in trade-mark disputes), (ii) the Registrant had no legitimate interest in the domain name, and (iii) the Registrant had registered the domain name in bad faith.
The third panellist disagreed with all three of these findings. With respect to the second branch of the test, namely that a successful complainant under the Policy prove that the registrant has no legitimate interest in the subject domain name, the third panellist noted: “Pay-per-click systems based on generic terms or expression is not an illegal, nor a reprehensible commercial practice.”
For a copy of the decision, visit:
http://www.cira.ca/en/dpr-decisions/00043-entreprise.ca.pdf
For additional information, visit:
http://www.cira.ca/en/dpr-decisions/00043-1-entreprise.ca.pdf