The Complainant is Carvana, LLC, United States of America (“US” or “Unites States”), represented by Bryan Cave Leighton Paisner, United States.
The Respondent is 石磊 (Shilei), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2020. On September 22, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 23, 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 25, 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 in English on September 28, 2020. On September 25, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 28, 2020, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of proceeding. 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 in English and Chinese of the Complaint, and the proceedings commenced on October 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2020. The Center appointed Karen Fong as the sole panelist in this matter on November 10, 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 Complaining is an e-commerce platform for buying and selling used cars in the United States under the name Carvana. Its primary website is at “www.carvana.com” which hosts its e-commerce platform. Since its launch in January 2013, the Complainant’s business has expanded to more than 260 markets covering more than 73 percent of the US population. In 2019, the Complainant sold more than 175,000 vehicles to retail customers with used vehicle sales revenue exceeding USD 3 billion. The Complainant’s website averages more than five million unique visitors each month. The Complaint’s services include online automobile dealership services, online automobile financing and warranty, and gap insurance services. The Complainant’s CARVANA name is registered as a trade mark in the US. The earliest registration submitted in evidence is US Trade Mark Registration No. 4328785 registered on April 30, 2013 (the “Trade Mark”). The Respondent registered the Domain Name on February 17, 2015. The Domain Name resolves to a pay-per-click parking page with advertising links to third-party websites that directly compete with the Complainant (the “Website”). 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that: (i) the Domain Name is identical or confusingly similar to a trade mark 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 was registered and is being used in bad faith. B. Language of the Proceeding The Rules, paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese. The Complainant submits that the language of the proceeding should be English for the following reasons: - The Domain Name wholly incorporates an invented word, which is the well-known mark of a US based company. - The Domain Name is in Roman rather than Chinese characters and the Website content is entirely in English, which indicates that the Respondent is acquainted with the English language. - A reverse WhoIs search against the Respondent’s email address shows that the Respondent has registered thousands of domain names in the English language including ones, which incorporate well known trade marks of third parties, which again indicates that the Respondent is familiar with the English language. - The Complainant would be put to great expense and inconvenience to have to translate the Complaint and its evidence, which would cause undue delay. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. The Panel accepts the Complainant’s submissions regarding the language of the proceeding. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In this case, the Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that all of the communications from the Center to the Parties were transmitted in both Chinese and English. In all the circumstances, the Panel determines that English be the language of the proceeding. C. Identical or Confusingly Similar The Panel is satisfied that the Complainant has established that it has rights to the Trade Mark. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name. In this case, the Domain Name contains the Complainant’s Trade Mark in its entirety together with the prefix “www”. It is well established that domain names, which consist of a common, obvious, or intentional misspelling of a trade mark is considered to be confusingly similar to the relevant mark for the purposes of the first element. This stems from the fact that the domain name contains sufficiently recognizable aspects of the relevant mark (see section 1.9.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). This is a typical typosquatting case as the Domain Name is clearly a misspelling of the Trade Mark to incorporate the common “www” host name of a URL. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the Top-Level Domain (“TLD”) in this case, “.com”. It is viewed as a standard registration requirement. The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. D. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in the disputed 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) the respondent has been commonly known by the domain name, even if it has acquired no trade mark 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 trade mark or service mark at issue. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with relevant evidence of rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant. The Complainant contends that it has not authorised, licensed or otherwise permitted the Respondent to use the Trade Mark in the Domain Name or for any other purpose. The Complainant is not aware of any evidence, which demonstrates that the Respondent is commonly known by a name corresponding to the Domain Name nor has it applied to register or owns any registrations of the Domain Name as a trade mark, trade name or company name. The Trade Mark being an invented word has no other significance other than being obviously connected to the Complainant. The Respondent has not made any 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, and is not making any legitimate noncommercial or fair use of the Domain Name. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has failed to respond and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name. In addition, the Panel notes the nature of the Domain Name carries a risk of implied affiliation with the Complainant (section 2.5.1 of the WIPO Overview 3.0). The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. E. Registered and Used in Bad Faith To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement. The Panel is satisfied that the Respondent must have been aware of the Trade Mark when it registered the Domain Name given the Trade Mark was registered prior to registration of the Domain Name and that the Trade Mark has no other significance other than being connected to the Complainant. It is implausible that the Respondent was unaware of the Complainant when he registered the Domain Name. In the WIPO Overview 3.0, section 3.2.2 states as follows: “Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.” The fact that there is a clear absence of rights or legitimate interests coupled with no explanation for the Respondent’s choice of the Domain Name is also a significant factor to consider (as stated in section 3.2.1 of WIPO Overview 3.0). In light of the above, the Panel finds that registration is in bad faith. The Panel also finds that the actual use of the Domain Name is in bad faith. The Website is a pay-per-click site, which has been set up for the commercial benefit to the Respondent. It is highly likely that web users when typing the Domain Name into their browser or finding it through a search engine would have been looking for a site operated by the Complainant rather than the Respondent. The Domain Name is likely to confuse Internet users trying to find the Complainant’s official website. Such confusion will inevitably result due to the incorporation of the Trade Mark as the most prominent element of the Domain Name with the prefix of “www” which is a typical ploy of cybersquatters, since all it takes is for an Internet user to inadvertently miss out the full stop between “www” and “caravana” when intending to type in the Complainant’s web address to arrive at the Website. The Respondent employs the fame of the Trade Mark to mislead users into visiting the Website instead of the Complainant’s. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent’s website is authorised or somehow connected to the Complainant. The Panel therefore also concludes that the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) 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 Karen Fong
Sole Panelist
Date: November 30, 2020
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