Copart, Inc. v. bruno oliveira
Claim Number: FA2305002043837
Complainant is Copart, Inc. (“Complainant”), represented by Rob LeBlanc of Haynes and Boone, LLP, Texas, USA. Respondent is bruno oliveira (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leiloescopart.net>, registered with NICENIC INTERNATIONAL GROUP CO., LIMITED.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on May 9, 2023; Forum received payment on May 9, 2023.
On May 11, 2023, NICENIC INTERNATIONAL GROUP CO., LIMITED confirmed by e-mail to Forum that the <leiloescopart.net> domain name is registered with NICENIC INTERNATIONAL GROUP CO., LIMITED and that Respondent is the current registrant of the name. NICENIC INTERNATIONAL GROUP CO., LIMITED has verified that Respondent is bound by the NICENIC INTERNATIONAL GROUP CO., LIMITED registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 15, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@leiloescopart.net. Also on May 15, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On June 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a publicly traded company with a market capitalization of over $37 billion that is an industry leader of online vehicle auction and remarketing services with operations worldwide. Complainant is a premier destination for the resale and remarketing of vehicles, and it provides vehicle sellers with a range of services to process and sell salvage and clean title vehicles over the Internet using its patented virtual auction technology. For 40 years, Complainant has provided goods and services related to the resale and remarketing of vehicles under the trademark COPART, including through the websites <copart.com> and <copart.com.br>, among others. Today, Complainant has more than 200 locations across 11 countries, including at least one location in every state in the USA, and has over 175,000 vehicles up for auction every day. Complainant has rights in the COPART mark through its registration in the United States in 2011.
Complainant alleges that the disputed domain name is identical or confusingly similar to its COPART mark as it incorporates the mark in its entirety, merely adding the descriptive term “leiloes”, which is the Portuguese word for “auctions”, while appending the “.net” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its COPART mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website displays Complainant’s mark and distinctive logo and offers competing services. Moreover, the resolving website displays numerous copyrighted images taken without authorization directly from Complainant’s websites. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business and diverts users for commercial gain. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the COPART mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark COPART dating back to 2011 and uses it to provide auction services for motor vehicles.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a website that displays Complainant’s mark and distinctive logo, and offers services that compete with those of Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s COPART mark in its entirety, merely adding the descriptive term “leiloes”, which is the Portuguese word for “auctions”, while appending the “.net” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its COPART mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as “Bruno Oliveira”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers services that compete with those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to offer competing services is not a bona fide offering of goods or services, nor any noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Thus Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers competing services. Under Policy ¶ 4(b)(iii), offering competing services is a disruption of a complainant’s business and thus evidence of bad faith registration and use. See Spark Networks PLC v. Houlihan, FA 653476 (Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)). Additionally, diverting users for commercial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leiloescopart.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 12, 2023
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