The Complainant is Carvana, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
The Respondent is Sharon Gale, Internet/Web Consultants, 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 31, 2020. On September 1, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 2, 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 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2020. The Respondent did not submit a formal response. Accordingly, the Center notified the Respondent’s default on September 24, 2020. On October 14, 2020, the Respondent sent an informal email communication to the Center, discussed in more detail below. The Center appointed Evan D. Brown as the sole panelist in this matter on October 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 provides an e-commerce platform for buying and selling used cars. The Complainant owns several trademark registrations for the mark CARVANA, including United States Trademark Registration Nos. 4,328,785 (registered on April 30, 2013) and 5,022,315 (registered on August 16, 2016). The disputed domain names were registered on August 3, 2020. As of the date of the filing of the Complaint, the disputed domain names were used to display parked pages with click-through advertising links to third party websites. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain names are identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and, that the disputed domain names were registered and are being used in bad faith. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. Nearly three weeks after its default, on October 14, 2020, the Respondent sent an email to the Center denying it was aware of any “infringement” when it registered the disputed domain names, and largely placed the blame on the Registrar for “upselling” its services. In this email communication, the Respondent offered to “release” the “domain” in exchange for USD 332. It is not clear whether the offer pertained to one or both of the disputed domain names. The Panel declines to consider this untimely submitted material. In any event, this informal response does not change the outcome of this decision. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain names are 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 names; and (iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar This element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain names are identical or confusingly similar to that mark. The Panel finds the Complainant has established rights in the CARVANA mark based on the Complainant’s trademark registrations. The Panel further finds that the disputed domain names are confusingly similar to the Complainant’s mark. The disputed domain names incorporate the entirety of the CARVANA mark. When a domain name wholly incorporates a complainant’s registered mark, that is sufficient to establish identity or confusing similarity for purposes of the Policy. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525. Furthermore, the addition of the generic Top-Level Domain (“gTLD”) “.com” is of no legal significance from the standpoint of comparing the disputed domain names to the Complainant’s CARVANA mark, because a gTLD is viewed as a standard registration requirement. See section 1.11 of the WIPO Overview 3.0. Furthermore, the addition of the words “direct” and “home delivery” to the Complainant’s marks in the disputed domain names does not eliminate the confusing similarity. For the foregoing reasons, the Panel finds that paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lack rights or legitimate interests in the disputed domain names, and if the Respondent fails to rebut that prima facie showing. In this case, the Complainant has made that showing, and the Respondent did not come forward with any of its own evidence to rebut the prima facie showing. The Panel finds that (a) the Respondent’s use of the disputed domain names to display click-through advertising links to third party websites is not a bona fide offering of goods or services, (b) the Respondent has not been commonly known by the disputed domain names, and (c) the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s marks. For these reasons, the Panel finds that the Complainant has succeeded on this second element of the Policy. C. Registered and Used in Bad Faith The Policy requires a complainant to establish that the disputed domain names were registered and are being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or a product or service on [respondent’s] website or location”. Because the Complainant’s CARVANA mark is well known, and because it has been in use and registered since before the registration of both of the disputed domain names, it is more likely than not that the Respondent was aware of the mark when it registered the disputed domain names. The Panel finds, on these facts, that the Respondent targeted the Complainant and its CARVANA mark when it registered the disputed domain names. These facts show bad faith registration of the disputed domain names. Bad faith use is clear from the Respondent’s activities of using the disputed domain names to display links to third party advertisements. The Complainant has successfully established the third UDRP element. 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 Evan D. Brown
Sole Panelist
Date: October 21, 2020
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