The Complainant is Carvana, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
The Respondent is On behalf of xcarvana.com OWNER, c/o whoisproxy.com, United States / On behalf of cargvana.com OWNER, c/o whoisproxy.com, United States / Domain Admin, United States. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2020. On August 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 21, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 21, 2020 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 21, 2020. On September 2, 2020, the Center sent a request for amendment to the amended Complainant. On September 2, 2020, the Complainant filed a second amended Complaint. The Center verified that the Complaint together with the amended Complaints 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 September 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2020. The Center appointed Nels T. Lippert as the sole panelist in this matter on October 5, 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 is an Arizona limited liability company located in Tempe, Arizona, United States. The Complainant is an established e-commerce platform for buying and selling used cars in the United States. The Complainant delivers vehicles throughout the United States and also operates Carvana brand automobile vending machines in major cities in the United States. The Complainant uses and has registered the CARVANA trademark and variations thereof in the United States including the word mark CARVANA, United States Registration No. 4,328,785, issued April 30, 2013 for “online dealership services featuring automobiles” in Class 35, and “online financing services in the field of automobile loans” in Class 36; the word mark CARVANA, United States Registration No. 5,022,315, issued August 16, 2016 for “shipping, pickup, and delivery services for automobiles” in Class 39; and CARVANA (stylized), United States Registration No. 6,037,292, issued April 21, 2020 for “online dealership services featuring automobiles” in Class 35, “online financing services in the field of automobile loans; extended warranty services, namely, service contracts; providing extended warranties on automobiles” in Class 36, and “shipping, pickup, and delivery services for automobiles” in Class 39. The Complainant furthermore promotes and provides its online services through its primary website, “www.carvana.com”, which hosts its e-commerce platform. According to the Registrar’s WhoIs information, both disputed domain names were registered on January 16, 2020. The disputed domain names redirect to parked pages with links to third party websites. 5. Parties’ Contentions A. Complainant The Complainant asserts that the disputed domain names are confusingly similar to the Complainant’s marks because they incorporate the CARVANA mark in its entirety except an additional letter “x” or “g” is added. The Complainant contends this is a classic example of typosquatting which does not avoid confusing similarity and is designed to misdirect Internet users who make a typographical error when entering the disputed domain names. The Complainant contends the Respondent has no rights or legitimate interests in respect of the disputed domain names within the meaning of paragraph 4(a)(ii) of the Policy because the Respondent is not in any way associated with the Complainant and has not received authorization or license to use the CARVANA marks which are well known, the Respondent has not established that it is or ever has been commonly known under the disputed domain names, the disputed domain names are confusingly similar to the Complainant’s CARVANA marks, and the disputed domain names are being used to lure consumers to an imposter’s sites for commercial gain. The Complainant further contends that the disputed domain names were registered and are being used in bad faith because the Respondent utilizes the disputed domain names to divert potential users away from the Complainant’s primary website at “www.carvana.com”, away from the Complainant’s services and toward the Respondent’s websites. The Complainant specifically notes the disputed domain names automatically redirect either to parked pages with links to third party websites or directly to third party commercial websites. In particular the Complainant notes that the disputed domain names redirect to third party websites that appear to be distributing malware or undesired applications, and a website that offers automobile dealership services directly competing with the Complainant. Furthermore, the Complainant asserts the Respondent is a serial cybersquatter who has engaged in a pattern of registering domain names that incorporate famous trademarks to profit from trademark owners’ names and consumer confusion. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint 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”. A. Identical or Confusingly Similar In this case, the disputed domain names incorporate the Complainant’s CARVANA trademark in its entirety with the addition of an extra letter, here the addition of an “x” and a “g” respectively. As noted in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. In this case, the addition of the “x” and the “g” in the disputed domain names is an example of typosquatting by addition of adjacent keyboard letters. See, Fuji Photo Film U.S.A., Inc. v. LaPorte Holding, WIPO Case No. D2004-0971. Therefore, the disputed domain names are confusingly similar to the Complainant’s CARVANA trademark. The Panel finds the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the domain name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) that the Respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant in this proceeding has demonstrated trademark rights and a lack of permission to use the Complainant’s mark in the disputed domain names. The Complainant contends that none of the circumstances under paragraph 4(c) of the Policy would apply in this case. The Respondent has not advanced rights or legitimate interests to rebut the Complainant’s prima facie case, and none are evident from the record or the use of the disputed domain names. The Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith In this case, the Complainant has submitted compelling evidence that the disputed domain names were registered and are being used in bad faith. The disputed domain names were registered by the Respondent many years after the Complainant’s CARVANA mark was registered in the United States. As noted in WIPO Overview 3.0, section 1.9, panels will normally find that employing typosquatting as found here, signals an intention on the part of the Respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the Complainant. Panels have consistently found that the mere registration of a domain name comprising typos to a widely known or famous trademark can itself create a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4. The current use of the disputed domain names to redirect Internet users away from the Complainant’s primary website and to third party websites that appear to be distributing malware or undesired applications or to websites that offer services competing with the Complainant is bad faith use. 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 names Nels T. Lippert
Sole Panelist
Date: October 19, 2020
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