The Complainant is PDQ Automotive B.V., Netherlands, represented by NLO Shieldmark B.V., Netherlands.
The Respondent is Registration Private, Domains By Proxy, LLC / Osman Hakan Demirel, Turkey.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2021. On November 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 9, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 15, 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 amendment to the Complaint on November 15, 2021.
The Center verified that the Complaint together with the amendment to the Complaint satisfy 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 December 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 27, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2021.
The Center appointed Steven A. Maier as the sole panelist in this matter on January 14, 2022. 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.
On January 21, 2022, the Panel issued Procedural Order No. 1 inviting the Complainant to submit evidence concerning its use of the trademarks referred to in the Complaint by January 26, 2022 and permitting the Respondent to reply to such supplemental filing by January 31, 2022. The Complainant provided a supplemental filing accordingly on January 26, 2022. The Respondent did not reply to the Complainant’s supplemental filing.
4. Factual BackgroundThe Complainant PDQ Automotive B.V. is a company registered in the Netherlands. It is the parent company of a company registered in England and Wales named Vava Cars International Limited. Further references to the Complainant in this Decision shall encompass both the above entities.
The Complainant provides an online platform for the buying and selling of motor vehicles. It appears to have traded in Turkey and Pakistan, through another associated company, from a website at “www.vava.cars”.
The Complainant is the owner of trademark registrations for the word mark VAVA CARS and a figurative mark VAVACARS including, for example, the following:
- Benelux trademark registration number 1388551 for the word mark VAVA CARS, registered on January 11, 2019 in International Classes 35 and 36;
- International trademark registration number 1458399 for the word mark VAVA CARS, registered on February 1, 2019 in International Classes 35 and 36 and including Turkey within the territories designated;
- Benelux trademark registration number 1388796 for a figurative mark VAVACARS comprising stylized lettering in green and blue characters, registered on January 17, 2019 in International Classes 35 and 36; and
- International trademark registration number 1458376 for a figurative mark VAVACARS comprising stylized lettering in green and blue characters, registered on February 1, 2019 in International Classes 35 and 36 and including Turkey within the territories designated.
The disputed domain name was registered on December 27, 2020.
The disputed domain name does not appear to have resolved to any active website.
5. Parties’ Contentions A. ComplainantThe Complainant relies primarily upon its ownership of the trademarks referred to above. While having been invited by the Panel to provide evidence of any commercial use it has made of those trademarks which may have caused members of the public to associate those trademarks with the Complainant, it has provided only limited information by way of reply. In particular, the Complainant confirms that it has traded from the website “www.vava.cars” and makes reference to a short Wikipedia entry and to a press article concerning its funding. The Complainant provides no evidence, however, of its level of commercial operations, such as customer numbers or revenue, and no other evidence of any public recognition of its trademarks.
The Complainant submits that the disputed domain name is identical or confusingly similar to its trademarks referred to above.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It contends that the Respondent has no prior rights in the trademarks VAVA CARS or VAVACARS and that it has made no use of the disputed domain name.
The Complainant submits that the disputed domain name has been registered and is being used in bad faith. It contends that the disputed domain name is identical to its trademarks and that its inclusion of the term “cars” demonstrates its intended association with services for which those trademarks are registered. The Complainant submits that the registration of the disputed domain name prevents the Complainant from itself registering and using the disputed domain name.
The Complainant requests the transfer of the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Complainant has established that it has registered trademark rights in the marks VAVA CARS and VAVACARS. The Panel finds the disputed domain name to be identical to the word mark VAVA CARS and confusingly similar to the figurative mark VAVACARS, to which it is textually identical. The Panel therefore finds that the disputed domain name is identical or confusingly similar to trademarks in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant contends that the Respondent has no trademark rights in respect of the disputed domain name and has made no use of it. In the view of the Panel, the Complainant’s submissions give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not filed a Response in this proceeding and has not submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. There being no other evidence of rights or legitimate interests on the part of the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithIn order to succeed in the Complaint, the Complainant must establish the conjunctive requirement both that the disputed domain name was registered in bad faith and that it has been used in bad faith. In order to establish that the disputed domain name was registered in bad faith, it must show that the Respondent was more likely than not to have been aware of the Complainant’s trademarks at the date it registered the disputed domain name. While the Complainant relies on its trademark registrations, which predate the registration of the disputed domain name, that is insufficient for the purposes of the Policy to establish a presumption that the Respondent was aware of the trademarks in question: see, e.g. section 3.2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) which makes clear that “constructive notice” of a trademark, i.e.,knowledge arising from the fact of registration alone, will only be recognized by panels in limited circumstances which do not have application in this case.
It was for this reason that the Panel invited the Complainant to provide evidence of any commercial use it has made of those trademarks which may have caused members of the public to associate those trademarks with the Complainant. The Panel finds the Complainant’s evidence so provided to be scanty to say the least, amounting to little more than evidence that the Complainant has operated a website which appears to offer services in Turkey and Pakistan. The Complainant does not even provide visitor numbers to that website.
The Panel weighs against the paucity of the Complainant’s evidence the fact the Respondent is located in Turkey, being one of the two locations apparently served by the Complainant’s website. The Panel also finds the marks VAVA CARS or VAVACARS to be distinctive, having no obvious dictionary meaning or commercial profile other than in connection with the Complainant’s business. Noting that the disputed domain name is identical to the Complainant’s trademarks and the fact that the Respondent has provided no explanation for its choice of the disputed domain name, the Panel is prepared to infer, on balance, that the Respondent is likely to have registered the disputed domain name in the knowledge of the Complainant’s trademarks and with the intention of taking unfair commercial advantage of those marks.
Concerning the Respondent’s use of the disputed domain name, the Panel finds the disputed domain name to be inherently misleading and to be likely to suggest to Internet users that it is owned or operated by, or otherwise associated with, the Complainant. In the absence again of any submissions from the Respondent, the Panel finds it difficult to envisage any use that could be made of the disputed domain name that would not conflict with the Complainant’s trademark rights and finds that, in these circumstances, it is unimportant that no active use has been made of the disputed domain name. See e.g. Telstra Corp, Inc. v. Nuclear Marshmallows,
WIPO Case No. D2000-0003.
The Complainant is imprecise as to which, if any, of the grounds under paragraph 4(b) of the Policy it relies on as evidencing the Respondent’s bad faith. While the Complainant refers to the registration preventing it from registering and using the disputed domain name itself, the circumstances described in paragraph 4(b)(ii) of the Policy require a respondent to have engaged in a pattern of such conduct, of which there is no suggestion here. That said, given the Panel’s findings that the disputed domain name is inherently misleading and likely if used to conflict with the Complainant’s trademark rights, the Panel concludes that the disputed domain name has been used with the intention of taking unfair commercial advantage of the Complainant’s trademarks, which is sufficient to establish use of the disputed domain name in bad faith.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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,
Steven A. Maier
Sole Panelist
Date: February 10, 2022