The Complainant is Carvana, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner LLP, United States.
The Respondent is Registration Private, Domains By Proxy, LLC, United States / Carolina Rodrigues, Fundacion Comercio Electronico, 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 20, 2020. On August 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 21, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 4, 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 September 4, 2020. The Center verified that the Complaint together with the amended 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 September 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 27, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2020. The Center appointed Jeremy Speres as the sole panelist in this matter on October 9, 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 has, since 2013, operated as an ecommerce platform for trade in used cars under the CARVANA mark in the United States. The Complainant promotes and renders car dealership, financing and insurance services through its primary website at “www.carvana.com”. The Complainant operates in more than 260 markets covering more than 73% of the United States population. In 2019, the Complainant sold more than 175,000 cars to retail customers, with used car revenue exceeding USD 3 billion. The Complainant owns several registered trade marks in the United States consisting of or incorporating the word “carvana”, the earliest and most relevant of which is Registration No. 4328785 for the word mark CARVANA which was registered on April 30, 2013 in classes 35 and 36. The Domain Name was registered on December 23, 2019 and, as at the date of lodging of the Complaint and drafting of this Decision, resolved to a parked page displaying click-through advertisements. 5. Parties’ Contentions A. Complainant The Complainant contends as follows. The Domain Name is confusingly similar to the Complainant’s well-known mark given that it incorporates the mark in its entirety except with the addition of a hyphen, which does not obviate confusion and which constitutes typosquatting. The Respondent has no rights or legitimate interests in the Domain Name: the Domain Name is unauthorised; the Complainant’s mark is well known; and being confusingly similar to the Complainant’s mark, the Domain Name is being used to lure consumers to a commercial site for the Respondent’s gain. The Domain Name was registered and is being used in bad faith: the Respondent uses the Domain Name to divert customers away from the Complainant, using advertisements for third parties, some of which compete with the Complainant, generating revenue for the Respondent; and the Respondent has engaged in a pattern of cybersquatting involving other well-known trade marks. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Domain Name is confusingly similar to the Complainant’s registered trade mark. It is well established that where a domain name consists of a clear misspelling of a trade mark such that the mark is recognisable, as in this case, the domain name will be considered confusingly similar. See section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): this includes “interspersion of other terms”. Here, the Domain Name is aurally identical to the mark and visually nearly identical. UDRP panels have found the interspersion of a hyphen, including in the middle of the trade mark as in this case, does not prevent a finding of confusing similarity (EnBW Energie Baden-Württemberg AG v. Contact Privacy Inc. / ICS INC.,WIPO Case No. D2013-1069; Worldpay Limited v. pay world / PrivacyProtect.org,WIPO Case No. D2014-0018). The Complainant has satisfied the standing requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent (see section 2.1 of the WIPO Overview 3.0). Here, the Complainant has made out a prima facie case which the Respondent has failed to rebut. The Complainant’s evidence establishes that the Complainant’s CARVANA mark was used extensively and enjoyed considerable goodwill in the United States prior to registration of the Domain Name. The Complainant has succeeded in various UDRP proceedings in which the panels accepted that the mark is well known (Carvana, LLC v. Domain Administrator, Fundacion Privacy Services LTD,WIPO Case No. D2020-1533; Carvana, LLC v. Nick Dillman,WIPO Case No. D2020-1483). The Domain Name is confusingly similar to the Complainant’s well-known, registered mark and the Complainant has certified that the Domain Name is unauthorised by it. There is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy pertain. The Respondent’s name, per the WhoIs data revealed by the Registrar, bears no resemblance to the Complainant’s mark for the purposes of paragraph 4(c)(ii) of the Policy. The only evidence of use of the Domain Name, a typosquatting of the Complainant’s mark, is that of redirection to a parked page comprising advertisements linked to third-party commercial websites offering services which, inter alia, compete with the Complainant, e.g., car dealerships. UDRP panels may undertake limited factual research into matters of public record (WIPO Overview 3.0 at section 4.8). The Panel has independently viewed the Hypertext Markup Language (“HTML”) code for the page to which the Domain Name redirects and has established that the page serves advertisements utilising the Google AdSense program on a pay-per-click (“PPC”) basis. UDRP panels have found that use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalise on the complainant’s mark or otherwise mislead users (WIPO Overview 3.0 at section 2.9). The Panel has also searched the Internet Archive, which contains no historical evidence of use of the Domain Name that might otherwise confer rights or legitimate interests upon the Respondent. The Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant’s mark was in use and well known long in advance of registration of the Domain Name, which comprises a typosquatting of the Complainant’s mark. The Complainant’s mark is an invented, inherently distinctive term. It is thus unlikely that the Respondent registered the Domain Name for its semantic value as opposed to the attractive brand value of the Complainant’s mark. The Respondent is a serial cybersquatter. The Panel has independently established, using public search tools, that the Respondent has been the respondent in at least 117 separate UDRP proceedings all decided against the Respondent (with the exception of one domain in a complaint involving multiple domain names). In many such decisions, the Respondent was found to have targeted a well-known trade mark. Tellingly, the Complainant cites one such decision in which the Respondent targeted the Complainant’s mark (Carvana, LLC v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2020-1376). The Panel has independently discovered a second decision, which was not raised by the Complainant (Carvana, LLC v. Carolina Rodrigues,WIPO Case No. D2020-1611). This evidences a clear pattern of targeting trade marks, and in particular the Complainant’s mark. Such a pattern is relevant in assessing bad faith generally. When considered along with the facts that the Complainant’s mark was well known and inherently distinctive at the point of registration of the Domain Name, the fact that the Respondent is a high-volume registrant supports an inference that it knew or should have known that the Domain Name would be confusingly similar to the Complainant’s mark (WIPO Overview 3.0 at section 3.2.2). As further evidence of this pattern, the Complainant presents the results of a reverse WhoIs search for “carolina rodrigues”, highlighting numerous domain names corresponding to well-known trade marks. That search term consists of two common personal names, and it is conceivable that the reverse WhoIs data contains false positives – domain names matching the search term not registered by the Respondent. No evidence is presented tying the highlighted domain names to the Respondent. The probative value of this particular evidence is thus questionable, but given the totality of the facts, nothing turns on it. Although not raised by the Complainant, the Panel has established that the Domain Name is for sale on domain marketplace Sedo with a minimum offer of USD 999 – most likely in excess of the out-of-pocket costs related to the Domain Name. This is further evidence of bad faith in accordance with paragraph 4(b)(i) of the Policy. The Domain Name is being used to advertise competitors of the Complainant. This, combined with the fact that the Domain Name is confusingly similar to the Complainant’s well-known mark, is a clear indicator of bad faith under paragraph 4(b)(iv) of the Policy (WIPO Overview 3.0 at section 3.1.4). A respondent cannot disclaim responsibility for programmatically generated PPC content (WIPO Overview 3.0 at section 3.5). The Respondent has attempted to conceal its identity by using a privacy service. Given the totality of the facts in this case, this is a further indicator of bad faith (section 3.6 of the WIPO Overview 3.0). Under the Rules, paragraph 14(b), a panel may draw inferences from the respondent’s default where a particular conclusion is prima facie obvious, where an explanation is called for but is not forthcoming, or where no other plausible conclusion is apparent (section 4.3 of the WIPO Overview 3.0; see also Pixers Ltd. v. Whois Privacy Corp.,WIPO Case No. D2015-1171). The Complainant has satisfied 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 Domain Name, Jeremy Speres
Sole Panelist
Date: October 31, 2020
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