The Complainant is Klarna Bank AB of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Shen Chao Yong of Fuzhou, Fujian, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eName Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2017. On December 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 20, 2017, 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. On January 2, 2018, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on January 8, 2018. The Respondent did not reply by the specified due date.
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 January 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 1, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2018.
The Center appointed Karen Fong as the sole panelist in this matter on February 14, 2018. 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 was founded in 2005 in Stockholm, Sweden with the aim of making payment for online shopping as simple, safe and smooth as possible. It has now become one of Europe’s largest banks and is providing payment solutions for 60 million consumers across 70,000 merchants in 18 countries. On June 19, 2017 (the day before the Domain Name was registered), the Complainant announced that it has been granted a full banking license by the Swedish Financial Supervisory Authority.
The Complainant provides its services under the trade mark KLARNA. The KLARNA trade mark is registered in many jurisdictions including China (the “Trade Mark”). The earliest trade mark registration submitted in evidence was registered on December 6, 2010 (European Union Trade Mark No. 009199803). The Complainant has also a significant presence on various social media platforms, such as Facebook, Youtube, Instagram and Twitter.
The Domain Name was registered by the Respondent, a Chinese national, on July 22, 2017. The Domain Name does not appear to be connected to an active website. On September 7, 2017 the Complainant sent the Respondent a cease-and-desist letter but did not receive a response. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and used in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent
The Respondent did not file a formal Response to the Complainant’s contentions but did email the Complainant on January 3, 2018. He said that he owns the trade mark for KLARNA in China and therefore entitled to register the Domain Name. However he was prepared to cease any further use and transfer the Domain Name to the Complainant for USD 2,000. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith. 6.1. Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese.
The Complainant submits that the language of the proceeding should be English. The Complainant contends that conducting the proceeding in Chinese would result in delay and places an undue burden on the Complainant. The Domain Name includes the word “card” which is an English word. Further after receipt of the Complaint, the Respondent sent an email to the Complainant in English which demonstrates his knowledge of the English language.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel accepts the Complainant’s submissions regarding the language of the proceeding. The Respondent has not challenged the Complainant’s request. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In this case, the Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that all of the communications from the Center to the Parties were transmitted in both Chinese and English. In all the circumstances, the Panel determines that English be the language of the proceeding. 6.2. Substantive Analysis A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has registered rights to the Trade Mark.
The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to establish if the domain name is identical or confusingly similar to the complainant’s trade mark. The trade mark would generally have to be recognizable within the domain name. In this case the Domain Name integrates the Trade Mark in its entirety with the addition of the descriptive term “card”. The addition of the descriptive word “card” does nothing to prevent a finding of confusing similarity.
For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the Top-Level Domain (“TLD”) irrespective of the particular TLD and the ordinary meaning ascribed to a particular TLD. It is viewed as a standard registration requirement.
The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainant contends that the Respondent is not commonly known by the Domain Name or the Trade Mark. The Respondent does not own any trade marks for KLARNA. There is no legitimate noncommercial use of the Domain Name since the Domain Name is not connected to an active website. As such, neither is there evidence of any demonstration of a bona fide offering of goods or services.
The Respondent alleges in his email to the Complainant that he owns and has registered the KLARNA trade mark in China. However no evidence has been provided of such registration. The Panel is highly skeptical of his alleged ownership of the KLARNA trade mark especially since he offered to stop using the Doman Name and sell it to the Complainant for USD 2,000. Further no explanation has been given as to how he conceived of this trade mark. It is too much a coincidence that the Domain Name was registered on day after the announcement of the Complainant’s receipt of a full banking licence in Sweden and all the attendant publicity that would entail.
As the Respondent has not provided the necessary evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Trade Mark when he registered the Domain Name. It is implausible that he was unaware of the Complainant when he registered the Domain Names given the popularity of the Trade Mark. In the WIPO Overview 3.0, section 3.2.2 states as follows:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”
It is inconceivable that the Domain Name was selected by the Respondent without the Complainant in mind. As outlined under the second element above, the clear absence of rights or legitimate interests coupled with no credible explanation for the Respondent’s choice of the Domain Name is also a significant factor to consider (as stated in section 3.1.1 of WIPO Overview 3.0). The Domain Name falls into the category stated above and the Panel finds that registration is in bad faith
Although the Domain Name is not connected to an active website, it does not prevent a finding of bad faith. From the inception of the UDRP, panelists have found that non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. As stated in section 3.3 of WIPO Overview 3.0, panelists look at the totality of the circumstances in each case. Factors considered relevant include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good faith use, (iii) the respondent’s concealing its identity or use of false contact details, and (iv) the implausibility of any good faith use to which the domain name may be put.
In addition to the circumstances of registration referred to above, the following facts indicate that the Domain Name is being used in bad faith – (i) the Trade Mark is a distinctive mark with no obvious meaning; (ii) the Respondent has failed to file a formal response or evidence that it has registered rights in the KLARNA trade mark in China; (iii) the contact details of the Respondent provided in the WhoIs appear to be false. There is no street number or a proper street name which is evidence of the Respondent attempting to hide his identity and/or contact details; and (iv) the Panel cannot conceive how there could be any good faith use of the Domain Name.
The Respondent also offered to sell the Domain Name for USD 2,000 after receipt of the Complaint. This is a clear demonstration that the Domain Name has been registered and used in bad faith. The offer to transfer the Domain Name for sums exceeding the reasonable cost of registration and maintenance falls squarely within the circumstances in paragraph 4(b)(i) of the Policy which is evidence of bad faith. Considering the circumstances, the Panel considers that the Domain Name was also used 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 Domain Name be transferred to the Complainant.
Karen Fong
Sole Panelist
Date: February 26, 2018
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