Carvana, LLC v. Otto Akama
Claim Number: FA1809001809203
Complainant is Carvana, LLC (“Complainant”), represented by Tony Caliendo of Perkins Coie LLP, Arizona, USA. Respondent is Otto Akama (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carvanacarsworlwide.com>, registered with NameCheap, Inc..
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 the Forum electronically on September 26, 2018; the Forum received payment on September 26, 2018.
On September 28, 2018; Oct 19, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <carvanacarsworlwide.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 October 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 19, 2018 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@carvanacarsworlwide.com. Also on October 29, 2018, 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, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did send e-mails to the Forum, see below.
On November 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 U.S.-based company that operates a website that sells cars under the CARVANA trademark. Complainant has rights in the mark based upon registration in the United States in 2013.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it includes the entire mark plus the descriptive term “carsworlwide” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use the CARVANA mark in any way. Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant in furtherance of a phishing scam. Complainant cites UDRP precedents to support its position.
Furthermore, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent attempts to commercially gain by passing off as Complainant and phishing for Internet users’ personal and/or financial information. Finally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. The e-mails that Respondent sent to the Forum do not contain any allegations or information relevant for the present case.
Complainant owns the mark CARVANA and uses it to operate a website that offers cars for sale.
Complainant’s rights in its mark date back to 2013.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo. It includes a checkout page that prompts Internet users to enter their personal and/or financial information.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is confusingly similar to Complainant’s mark because it includes the entire mark plus the descriptive term “cars worldwide” and a gTLD. The addition of a gTLD and a descriptive term to a mark may not be sufficient to distinguish a mark from a disputed domain name per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Sunny Bhadauria, FA 1786429 (Forum June 7, 2018) (finding the <bloombergquint.org> domain name to be confusingly similar to the complainant’s BLOOMBERG mark, as the name consists of the mark, the added term “quint” (which refers to the complainant’s Indian business partner “Quintillian Media”) and the gTLD “.org”). Accordingly, when conducting a Policy ¶ 4(a)(i) analysis, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Respondent is not authorized to use Complainant’s mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify respondent under Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (“UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name.”). Here, the WHOIS information identifies the registrant of the disputed domain name as “Otto Akama.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Specifically, Complainant provides screenshots of the webpages associated with the disputed domain name which mimic Complainant’s website and show Complainant’s mark as well as photos of its delivery service and vehicles. Furthermore, the resolving website contains a checkout page that prompts Internet users to enter their personal and/or financial information. Use of a domain name to pass off as complainant and phish for Internet users personal information may not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Accordingly, while conducting a Policy ¶¶ 4(c)(i) or (iii) analysis, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent 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, Respondent attempts to gain commercially by passing off as Complainant in furtherance of a phishing scheme. Such use of a domain name may be evidence of bad faith per Policy ¶ 4(b)(iv). See FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: Respondent used Complainant’s mark and logo on the resolving website, which mimics Complainant’s legitimate website. 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 Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). 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 <carvanacarsworlwide.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 20, 2018
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