The Complainant is Carvana, LLC, United States of America, represented by Bryan Cave Leighton Paisner, United States of America (“United States” or “U.S.”).
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2020. On August 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 6, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2020. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on September 8, 2020. 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 The Complainant, established in the United States in January 2013, is a leading e-commerce platform for buying and selling used cars. The Complainant is the holder of multiple United States trademark registrations for its CARVANA mark issued by the United States Patent and Trademark Office (USPTO) as follows: U.S. Reg. No. 4328785, filed April 11, 2011, and registered on April 30, 2013 (covering online automobile dealership services and online financing services including automobile loans in International Class 36); U.S. Reg. No. 4971997 filed May 15, 2015, and registered on June 7, 2015 (extended warranty services, namely service contracts; Providing extended warranties on automobiles in International Class 36); U.S. Reg. No. 5022315, filed January 7, 2016, and registered on August 16, 2016 (covering shipping, pickup, and delivery services in International Class 39); and, U.S. reg. No. 6037292, filed November 13, 2019, and registered on April 21, 2020 (stylized) (covering online dealership services featuring automobiles in International Class 35, online financing services in the field of automobile loans; extended warranty services, namely, service contracts; providing extended warranties on automobiles, in International Class 36, and shipping, pickup, and delivery services for automobiles in International Class 39.). The Complainant’s CARVANA marks have been used in commerce since as early as January 2013. The Complainant has realized substantial growth in sales through its website at “www.carvana.com”. In 2019 alone, the Complainant sold more than 175,000 vehicles to retail customers with used vehicle sales revenue exceeding $3 billion. The Complainant owns the domain name The Complainant also owns the domain name The disputed domain name The Complainant contends that he also holds unregistered common law rights in marks related to its CARVANA trademarks, such as the CARVANA ACCESS marks, including the CARVANA ACCESS word mark and a CARVANA ACCESS design mark, via its use of the marks in commerce under U.S. trademark law. The Complainant alleges that the disputed domain name wholly incorporates its CARVANA trademark and that it is therefore confusingly similar to it. The difference between the disputed domain name and the Complainant’s CARVANA trademark is the addition of the letters “ccess”, which the Complainant describes as an obvious misspelling of its domain The Complainant alleges the Respondent has no rights or legitimate interests in respect of the disputed domain name and is unable to rely on any of the circumstances set out in paragraphs 4(c)(i), (ii), or (iii) of the Policy. The Complainant claims that the disputed domain name was registered and is being used in bad faith since it is clearly designed to trade on the reputation and goodwill of the Complainant’s marks for financial gain, by diverting potential user to its websites and by offering the disputed domain name for sale. The Complainant requests that the disputed domain name is transferred from the Respondent to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. It has been a consensus view in previous UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true (see section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that; (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the Complainant’s CARVANA mark, in which the Complainant has established rights through registration and use. The Complainant’s CARVANA mark is clearly recognizable in the disputed domain name. The inclusion of the letters “ccess” in the disputed domain name does not serve to dispel the confusing similarity of the disputed domain name to the Complainant’s mark. When the relevant trademark is recognizable in the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not preclude a finding of confusing similarity under paragraph 4(a)(i) of the Policy (see section 1.8 of the WIPO Overview 3.0). Generic top-level domains (“gTLDs”) are generally disregarded when evaluating the identity or confusing similarity of the Complainant’s mark to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the gTLD (see section 1.11 of the WIPO Overview 3.0). Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the Complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s distinctive CARVANA mark in mind when registering the disputed domain name. The disputed domain name is an obvious misspelling of the Complainant’s domain name The disputed domain name hosts a parked page comprising pay-per-click links, which as numerous previous UDRP panels have found, does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users, which is the case here (see section 2.9 of the WIPO Overview 3.0). The Complainant therefore made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The fact that disputed domain name consists of an obvious misspelling of the Complainant’s domain name The current use of the disputed domain name as a parked page comprising pay-per-click links, which in part also redirect Internet users to websites offering services competing with the Complainant further proves to the Panel that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark. Previous UDRP panels have found that employing a misspelling in this way signals an intention on the part of the Respondent to confuse Internet users seeking or expecting the Complainant. (See section 1.9 of the WIPO Overview 3.0). For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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 Christian Gassauer-Fleissner
Sole Panelist
Date: October 2, 2020
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