Complainant is Klarna Bank AB of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
Respondent is Wei Dai Hong of Linyi, Shandong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2018. On September 25, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 26, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
On September 26, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 28, 2018, Complainant confirmed its request that English be the language of the proceeding. Respondent did not comment on the language of the proceeding.
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 Respondent of the Complaint, in English and Chinese, and the proceedings commenced on October 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 23, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 24, 2018. On October 25, 2018, the Center received an informal communication from Respondent. On the same day, the Center notified the Parties that it will proceed to appoint the Panel.
The Center appointed Yijun Tian as the sole panelist in this matter on October 30, 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 A. Complainant
Complainant, Klarna Bank AB, is a company incorporated in Stockholm, Sweden. Founded in 2005 in Stockholm, Klarna is now one of Europe’s largest banks and is providing payment solutions for 60 million consumers across 70,000 merchants in 18 countries. Complainant has also a significant presence on various social media platforms, such as Facebook, Youtube, Instagram, Google+, and Twitter (Annex 4 to the Complaint).
Complainant has registered a number of trademarks for KLARNA, including trademark registrations in China (since June 7, 2015, the Chinese trademark registration number 14203831), and International trademark registration (since December 21, 2010, the trademark registration number 1066079) (Annex 5 to the Complaint). B. Respondent
Respondent is Wei Dai Hong of Linyi, Shandong, China. Respondent registered the disputed domain name on May 12, 2018, which is long after Complainant’s registration of the KLARNA trademarks internationally (since 2010), and in China (since 2015). The disputed domain name directed to a website listing the disputed domain name for sale. At the time of this decision, it directs to a website which is currently inactive. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to the KLARNA marks.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it. B. Respondent
Respondent contends Respondent has not established a website which is related to Complainant or using the disputed domain name for making illegal profit.
Respondent has not taken the initiative to sell the disputed domain name to Complainant.
Complainant is not famous in China. In other words, Complainant is a small company, and no one knows it.
Complainant has not registered any trademark in China. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
a) The disputed domain name registered by Respondent contains Complainant’s registered trademark KLARNA in its entirety and the generic word “group”.
b) If the proceeding was to be conducted in Chinese, it would risk delaying the procedure and undue burden on Complainant.
c) The website resolved by the disputed domain name has not been put into use is listed “for sale” in English. The site is as such not addressing a typical Chinese audience.
d) Complainant is a Swedish company whose second language is English.
e) A more suitable Top-Level Domain (“TLD”) if only addressing the Chinese market would be “.cn” or similar extensions.
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states:
“Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585)
The Panel has taken into consideration the facts that Complainant is a company from Sweden, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters (“klarna”) and English word (“group”) and is registered in the generic Top-Level Domain (“gTLD”) space comprising of the Latin characters and English word, “net” (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds that persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name includes Latin characters “klarna” and English words “group” and “net” rather than Chinese script; (b) the contents of the website resolved by the disputed domain name were in both Chinese and English; (c) the Center has notified Respondent of the proceeding in both Chinese and English; (d) the Center informed Respondent that it would accept a Response in either English or Chinese.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantial Issues
Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that the disputed domain name should be transferred:
(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the KLARNA-related marks acquired through registration. The KLARNA marks have been registered in China and internationally since 2015 and 2010 respectively, and Complainant has a widespread reputation as one of Europe’s largest banks and is providing payment solutions.
The disputed domain name comprises the KLARNA mark in its entirety. The disputed domain name only differs from Complainant’s KLARNA trademarks by the suffix “group”, and the gTLD suffix “.net” to the KLARNA marks. This does not eliminate the identity between Complainant’s registered trademarks and the disputed domain name. WIPO Overview 3.0, section 1.8 states:
“Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements.”
In relation to the gTLD suffix, WIPO Overview 3.0 further states:
“The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11).
Thus, the Panel finds that disregarding the suffix “group” and the gTLD suffix “.net”, the disputed domain name is confusingly similar to the KLARNA mark.
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent has been commonly known by the disputed domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
According to the Complaint, Complainant manages the intellectual property rights of American fashion designer KLARNA. KLARNA is one of Europe’s largest banks and is providing payment solutions for 60 million consumers across 70,000 merchants in 18 countries. Complainant has rights in the KLARNA marks since 2015 in China, and 2010 internationally, which long precede Respondent’s registration of the disputed domain name (in 2018).
Moreover, Respondent is not an authorized dealer of KLARNA-branded products or services. The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the word “klarna” in the disputed domain name. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the KLARNA marks or to apply for or use any domain name incorporating the KLARNA marks, and Respondent has, through the use of an identical domain name created a likelihood of confusion with the KLARNA marks.
b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2018, long after the KLARNA marks became widely known. The disputed domain name is identical or confusingly similar to Complainant’s KLARNA marks.
c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The website resolved by the disputed domain name used to offer to sell the disputed domain name, and is currently inactive.
The Panel finds that Respondent has failed to produce any evidence to rebut Complainant’s prima facie showing on Respondent lack of rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location. a) Registered in Bad Faith
The Panel finds that Complainant has a widespread reputation in the KLARNA mark with regard to its products. Complainant has registered its KLARNA mark internationally, including international registration (since 2010) and national registration in China (since 2015). Complainant has also a significant presence on various social media platforms, such as Facebook, Youtube, Instagram, Google+, and Twitter (Annex 4 to the Complaint). It is not conceivable that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2018).
The Panel therefore finds that the KLARNA mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Thus, the Panel concludes that the disputed domain name was registered in bad faith. b) Used in Bad Faith
The disputed domain name is currently inactive. In terms of inactive domain name, the WIPO Overview 3.0 provides: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding.” (Section 3.3, WIPO Overview 3.0).
The WIPO Overview 3.0 further states:
“While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine 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 (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
As discussed above, Complainant’s KLARNA marks, arguably, are widely known. Taking into account all the circumstances of this case, the Panel concludes that the current inactive use of the disputed domain name by Respondent is in bad faith also.
In summary, Respondent, by choosing to register and use a domain name, which is confusingly similar to Complainant’s widely known trademarks, intended to disrupt Complainant’s business. In the absence of evidence to the contrary, the choice of the disputed domain name and the conduct of Respondent are indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision
For all 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 be transferred to Complainant.
Yijun Tian
Sole Panelist
Dated: November 13, 2018
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