The Complainant is Carvana, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
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 24, 2020. On August 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 3, 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 September 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 8, 2020. The Center appointed Anne-Virginie La Spada as the sole panelist in this matter on October 18, 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 a company founded in January 2013 and based in the United States. It operates an e-commerce platform for buying and selling cars throughout the United States. These services of online dealership and financing services are rendered under the name “Carvana”. The Complainant’s promotes and renders its services through its primary website at “www.carvana.com”, which hosts its e-commerce platform. The Complainant is the owner of several trademark registrations for CARVANA in the United States and in particular the following: - United States trademark registration number 4328785 registered on April 30, 2013, in classes 35 and 36. - United States trademark registration number 5022315 registered on August 16, 2016, in class 39 - United States trademark registration number 6037292 registered on April 21, 2020, in classes 35, 36 and 39. The disputed domain name The disputed domain name used to resolve to a webpage offering sponsored click-through advertising links to third-party websites. The website suggests that the disputed domain name may be for sale. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to its CARVANA trademark as it reproduces it in full with a typo (double “n” instead of single “n”) and in combination with the prefix “www”, these two elements consisting of typo squatting. The Complainant has not licensed or otherwise permitted the Respondent to use the CARVANA trademark or any variation thereof. The Complainant also contends that the Respondent is not commonly known by the disputed domain name. The Complainant claims that the Respondent does not show any bona fide or legitimate interest under the disputed domain name as it used to resolve to a website with pay-per-click third-party links competing with the Complainant. The Complainant considers that the Respondent registered the disputed domain name in bad faith to resell it for a higher price than just the registration costs directly related to the acquisition of a domain name. It also contends that the Respondent registered the disputed domain name to attempt generating financial gains by means of “click through” revenues. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following: (i) the domain name registered by the respondent 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 registered by the respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant owns various United States trademark registrations for the trademark CARVANA. The disputed domain name As a rule, UDRP panels consider that the addition of a descriptive term does not prevent a finding of confusing similarity (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In addition, panels consider that a domain name, which consists of a common, obvious or intentional misspelling, is confusingly similar to the relevant mark for purposes of the first element. Such misspellings are intended to confuse users seeking or expecting the complainant (see section 1.9 of the WIPO Overview 3.0). In the present case, the trademark CARVANA is clearly recognizable in the disputed domain name. The mere addition of the letters “www” and the misspelling of the Complainant’s trademark do not change the overall impression produced by the disputed domain name and are not sufficient to prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark (See for example DEKRA e.V.v. Andrzej Potrac,WIPO Case No. D2015-1223 or VMWARE Inc. v. Namespro Private Whois,WIPO Case No. D2015-0309: the adjunction of “www” “characterizes a form of typosquatting aimed at Internet users that forget to type the period/dot in between the ‘www’ (which stands for ‘World Wide Web’) and the desired domain name in their browsers”). UDRP panels also accept that a generic Top-Level Domain (“gTLD”), such as “.com”, should be disregarded when assessing whether a domain name is identical or confusing similar to a trademark (see section 1.11 of the WIPO Overview 3.0). The Complainant has thus satisfied the condition set forth in paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Based on the information submitted by the Complainant, the Respondent does not appear to have rights or legitimate interests in respect of the disputed domain name, nor has the Complainant granted to the Respondent an authorization to use the disputed domain name. Moreover, there is no evidence indicating that the Respondent is commonly known by the disputed domain name. The Respondent does not appear to have operated any bona fide or legitimate business under the disputed domain name and is not making a non-commercial or fair use of the disputed domain name. Instead, the Respondent used the disputed domain name in connection with a website containing pay-per-click links to third-party websites. These types of uses do not constitute bona fide offering of goods and services. Finally, the Respondent did not file a response to the Complaint. The Panel may draw from the lack of a Response the inferences that it considers appropriate, according to the Rules, paragraph 14(b). The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the condition set out in paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Given the distinctive nature of the trademark CARVANA, the Panel considers that the Respondent could not ignore the existence of the Complainant and of its CARVANA trademark at the time of the registration of the disputed domain name. As a consequence, the Panel finds it unlikely that the disputed domain name was chosen independently without reference to the Complainant’s trademark The disputed domain name resolves to a webpage mentioning that it is for sale. Considering the similarity of the disputed domain name with the Complainant’s trademark, it is likely that the Respondent registered the disputed domain name to resell it for a higher price than just the registration costs directly related to the acquisition of a domain name. According to paragraph 4(b)(i) of the Policy, circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name, constitute evidence of registration and use in bad faith. Furthermore, the presence of sponsored links to third party websites on the page to which the disputed domain name resolves also supports a finding of use in bad faith. Indeed, the redirection to a webpage with sponsored links suggests, in the Panel’s opinion, an intention on the part of the Respondent to exploit and profit from the Complainant’s trademark, by attempting to generate financial gains by means of “click through” revenues. This is further evidence of bad faith since the sponsored links include links to websites that offer automobile services which compete with the Complainant. Such conduct constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(b)(iv) of the Policy (see F. Hoffmann-La Roche AG v. James Lee,WIPO Case No. D2009-1199; Scania CV AB v. Michael Montrief,WIPO Case No. D2009-1149; Aspen Holdings Inc. v. Rick Natsch, Potrero Media Corporation,WIPO Case No. D2009-0776 and AllianceBernstein LP v. Texas International Property Associates,WIPO Case No. D2008-1230). Therefore, the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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 Anne-Virginie La Spada
Sole Panelist
Date: November 2, 2020
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