The Complainant is Carvana, LLC, United States of America (“United States” or “U.S.”), 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 January 4, 2021. On January 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 6, 2021, 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 January 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2021. The Center appointed Andrea Mondini as the sole panelist in this matter on February 25, 2021. 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 Carvana, LLC, an Arizona limited liability company, which operates an e-commerce platform for buying and selling used cars on its primary website at “www.carvana.com”. The Complainant owns several trademark registrations comprising the element “carvana”, including CARVANA (U.S. Registration No. 4,328,785), filed on April 11, 2011 and registered on April 30, 2013, for “online dealership services featuring automobiles” in International Class 35, and “online financing services in the field of automobile loans” in International Class 36. The disputed domain name was registered on October 30, 2020, and resolves to a webpage with click-through advertising to third party websites offering competing automobile related services. 5. Parties’ Contentions A. Complainant The Complainant in essence contends the following: The CARVANA trademarks are well known in the United States. The disputed domain name is confusingly similar to the Complainant’s trademarks since it identically reproduces the CARVANA trademark, whereby the mere addition of the letter “j” to the mark does not dispel confusion. The Complainant has not licensed or otherwise authorized the Respondent to use its trademarks and there is no indication that the Respondent would be known under the disputed domain name. The Respondent therefore has no rights or legitimate interests in the disputed domain name, or any rights in the Complainant’s trademarks, or association with the Complainant. The disputed domain name has been registered in bad faith because, given the Complainant’s reputation, the Respondent was obviously aware of the Complainant’s marks prior to registering the disputed domain name. The Respondent has used the disputed domain name in bad faith to divert Internet users away from the Complainant’s website to the Respondent’s website which features click-through advertising to third party websites offering goods and services that compete with the Claimant’s offerings. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, in order to succeed, a complainant must establish each of the following elements: (i) the disputed domain name is identical or confusingly similar to the 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 name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has shown that it holds registrations for the trademark CARVANA. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark CARVANA, because it incorporates this trademark in its entirety. The mere addition of the letter “j” does not dispel confusing similarity between the disputed domain name and the Complainant’s trademark. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant contends, credibly, that it has not authorized the Respondent to register or use the Complainant’s trademarks in the disputed domain name, and that there is no relationship whatsoever between the Parties. In the absence of any Response, the Panel concludes that the Respondent was not authorized or licensed to use the Complainant’s trademarks in the disputed domain name and that there is no indication of any legitimate noncommercial or fair use of the disputed domain name nor a bona fide offering of goods or services. Further, there is no indication that the Respondent is commonly known by the disputed domain name. Accordingly, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant has demonstrated that the CARVANA mark is distinctive and extensively used in the United States. Further, the Complainant’s CARVANA mark was registered well before the registration of the disputed domain name that incorporates the Complainant’s CARVANA mark in its entirety. Moreover, the disputed domain name resolves to a webpage with click-through advertising to third party websites offering automobile related services that directly compete with the Complainant. The Panel thus concludes that the Respondent must have been aware of the Complainant’s trademark and its reputation when it registered the disputed domain name, so that the disputed domain name was registered in bad faith. The Complainant has further shown that the Respondent utilizes the disputed domain name to divert potential users away from the Complainant’s primary website at “www.carvana.com” toward the Respondent’s website, which displays links related to third party websites offering competing automobile related services. Where a respondent is found to be diverting users to its website (and/or the websites of associated third parties) to generate traffic and sales commissions for its own commercial benefit, such conduct is recognized as constituting use in bad faith under the Policy. See, e.g., Microsoft Corporation v. Gioacchino Zerbo,WIPO Case No. D2005-0644. The Panel therefore finds that the Complainant has satisfied the requirement under 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 name Andrea Mondini
Sole Panelist
Date: March 11, 2021
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