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 February 17, 2021. On February 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 22, 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 March 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 31, 2021. The Center appointed William A. Van Caenegem as the sole panelist in this matter on April 27, 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, a U.S. company that renders online vehicle dealership services and online vehicle financing services throughout the United States under the CARVANA registered trademark and through its website “www.carvana.com”. It also offers warranty and gap insurance services for the vehicles it sells. The Complainant delivers vehicles throughout the U.S. - The Complainant owns multiple trademark registrations for the term CARVANA and variations on that term, including 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; CARVANACARE, U.S. Registration No. 4,971,997, filed on May 15, 2015 and registered on June 7, 2015, for “extended warranty services, namely service contracts; Providing extended warranties on automobiles,” in International Class 36; and CARVANA, U.S. Registration No. 5,022,315), filed on January 7, 2016 and registered on August 16, 2016, for “shipping, pickup, and delivery services for automobiles,” in International Class 39. - The disputed domain name was registered on December 3, 2020, and the parking page to which it resolves provides third-party links to similar goods and services to those of the Complainant. 5. Parties’ Contentions A. Complainant The Complainant asserts that in 2019, it sold more than 175,000 vehicles to retail customers in the U.S. with used vehicle sales revenue exceeding USD 3 billion, and its website is said to average more than 5 million unique visitors each month. The Complainant also says that it has expended, and continues to expend, a substantial amount of resources, money, time and effort promoting, marketing, advertising, and building consumer recognition and goodwill in its CARVANA brand goods and services. The Complainant points out that the Respondent currently uses the disputed domain name for a parking page with click-through advertising links to third-party websites, including auto dealership, financing, and insurance websites that directly compete with Complainant. The Complainant says that the Respondent has done nothing more than add an extra “ar” in the middle of its registered mark, which does not obviate confusion. The Respondent registered this insignificant variation of the Complainant’s CARVANA marks with the intention of misdirecting Internet users who make a common typographical or spelling error, or so the Complainant maintains. According to the Complainant, UDRP panels have consistently held that a mere addition or a minor misspelling of a trademark does not create a new or different mark in which Respondent has legitimate rights, a proposition supported by references to various UDRP panel decisions. This conduct, the Complainant points out, is commonly referred to as “typo-squatting” or “typo-piracy” as it seeks to wrongfully take advantage of errors in typing domain names into a Web browser’s location bar. Thus, the Respondent seeks to exploit consumer confusion and the Complainant’s goodwill by fully incorporating the Complainant’s CARVANA trademarks in the disputed domain name. The Complainant points out that Internet consumers are more likely to be misled into visiting virtual locations by the use of a confusingly similar domain name than traditional consumers. The Complainant maintains that all that it is required to do is establish that it has a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. Such a case is made out in this proceeding because the Complainant’s trade and service marks are well-known; there is no indication that the Respondent is known under the disputed domain name, which itself is identical or confusingly similar to the Complainant’s trademarks and serves as “bait” to attract customers to the Respondent’s site; and the disputed domain name is primarily descriptive of the Complainant’s services as it incorporates the Complainant’s trade and service marks. The Complainant also asserts that the Respondent is not in any way associated with it and has never received authorisation or a license to use its marks in any manner. The Complainant asserts that its CARVANA mark is a well-known trademark. Further, the CARVANA mark is an invented word, and as such, third parties would not choose this name unless seeking to create an impression of an association with the Complainant. Further, the Complainant says that the Respondent has no means of establishing that it is or ever has been commonly known as “Carvana” or any variation thereof and that the Respondent has not sought or procured any registrations for any tradenames, corporations, or trademarks with any governmental or business authority for “Carvana” or any variation thereof. According to the Complainant’s searches, the Respondent does not have any legitimate trademark, service mark, or other intellectual property rights in any of the CARVANA marks or any similar marks. The disputed domain name also wholly incorporates a typo-variation of the Complainant’s CARVANA trademarks. The disputed domain name resolves to parked pages with links to auto dealership, insurance, and financing services. The Complainant says that the disputed domain name was registered and is being used in bad faith. It is plainly designed to trade on the reputation and goodwill of the Complainant and its CARVANA marks for financial gain by diverting potential users toward the Respondent’s website to generate traffic and sales commissions for its own commercial benefit. Such conduct is uniformly recognised as constituting bad faith under the Policy, according to the Complainant. Numerous UDRP decisions have found bad faith under similar circumstances, according to the Complainant. Further, the Respondent’s complete lack of intellectual property rights in the disputed domain name also demonstrates bad faith. The Complainant asserts that where a domain name is so obviously connected to a particular product or service and the registrant is found to have no connection to that product or service, Panels will find a registrant guilty of “opportunistic bad faith”. In conclusion, the Complainant points out that the Respondent clearly knew of the Complainant’s established and continuous use of its CARVANA trademarks at the time of registration and that it had no right, title, or interest in these marks or the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The disputed domain name is not identical to the Complainant’s CARVANA registered trademark. However, the change in the disputed domain name consists only of the addition of “ar” after the initial “car” of the Complainant’s distinctive trademark. This is a barely noticeable variation as would commonly result from a typographical error in the course of typing in search terms relating to the Complainant’s website or offerings. The CARVANA trademark of the Complainant is plainly recognisable in the disputed domain name and in fact it is very easy to fail to notice the difference between the disputed domain name and the registered trademark at all. Therefore, the Panel holds that the disputed domain name is confusingly similar to the Complainant’s CARVANA trademark. B. Rights or Legitimate Interests There is no evidence before the Panel that the Respondent has any rights or legitimate interests in the disputed domain name. It has failed to respond to the Complaint and make out any kind of case based on such putative rights or interests. The Complainant has not authorised the use of its distinctive CARVANA trademark in any form or for incorporation in a registered domain name by the Respondent. The latter does not conduct any legitimate business in relation to the disputed domain name, and there is nothing to indicate that it is known by the mark CARVANA or the disputed domain name. Accordingly, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. Therefore, the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The CARVANA trademark of the Complainant is distinctive and the Complainant has been trading under the mark for a considerable time with operations now established in much of the United States and a considerable turnover. It is inconceivable, also given the nature and composition of the disputed domain name, that it was registered by the Respondent without knowledge of the CARVANA trademark of the Complainant or the latter’s legal rights. There is no evidence before the Panel of any legitimate reason for registering this domain name. This is a classic case of typosquatting which is a deliberate strategy to take advance of the reputation of another party’s marks to derive some financial advantage that is not in any way legitimate, authorised or approved. The disputed domain name provides links to business sites that provide competing goods and services with the Complainant. The Respondent is seeking to profit from the Complainant’s goodwill while at the same time diverting some of its potential customers to competing services. Therefore, the Panel holds that the Respondent has registered and used the disputed domain name in bad faith. 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 WiIliam A. Van Caenegem
Sole Panelist
Date: May 11, 2021
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