The Complainant is Carvana, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
The Respondent is Domain Privacy, Above.com Domain Privacy, Australia. 2. The Domain Name and Registrar
The disputed domain name <40carvana.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2021. On February 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 2, 2021, 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 February 3, 2021, 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 February 4, 2021.
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 February 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2021.
The Center appointed Dawn Osborne as the sole panelist in this matter on April 9, 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 the owner of the trade mark CARVANA, registered, inter alia, in the United States under Registration No. 4,328,785, filed on 11 April 2011 and registered on 30 April 2013, for car dealership and loan services.
The Domain Name registered in 2020 has been used to offer malware. 5. Parties’ Contentions A. Complainant
The Complainant is the owner of the trade mark CARVANA, registered, inter alia, in the United States for car dealership and loan services since 2013.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark adding only the ordinary number “40” and a generic Top-Level Domain (“gTLD”) “.com”, which do not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Respondent has used the Domain Name for pop up links offering malware via the Domain Name. The use of a domain name for malware is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is bad faith registration and use in opportunistic bad faith diverting Internet users away from the Complainant’s official site. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s CARVANA mark (registered in the United States for car dealership and loan services since 2013), the number “40” and the gTLD “.com”.
The addition of a number and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. The addition of the number “40” and the gTLD “.com” does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s CARVANA mark, which is still clearly recognisable in the Domain Name.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interests
The Complainant has not authorised the use of its CARVANA mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name.
The Complainant has produced prima facie proof that the Respondent has used the website attached to the Domain Name to offer malware, which is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. The Respondent has not answered this Complaint or explained why it should be able to register and use the Domain Name in this way.
As such, the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registered and Used in Bad Faith
Using a disputed domain name to disseminate malware indicates bad faith per se.
The Complainant has a considerable reputation for car dealership and loan services and the Domain Name appears to have been registered in opportunistic bad faith, for purposes disrupting the Complainant’s business and in opposition to its interests.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb 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 <40carvana.com> be transferred to the Complainant.
Dawn Osborne
Sole Panelist
Date: April 22, 2021
Full & Egal Universal Law Academy