The Complainant is Klaviyo, Inc., United States of America (“United States”), represented by The Law Office of Matthew M. Yospin, United States.
The Respondent is Host Master, 1337 Services LLC, Saint Kitts and Nevis. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2019. On November 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2019, 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 December 3, 2019 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 December 8, 2019. The Center verified that the Complaint together with the amendment to 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 December 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2020. The Center appointed Adam Taylor as the sole panelist in this matter on January 10, 2020. 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 supplies ecommerce-related software. Its website is at “www.klaviyo.com”. The Complainant owns a number of registered trade marks for KLAVIYO including United States trade mark No. 5338472, filed on January 19 2017, registered on November 21, 2017, in classes 35 and 42. The disputed domain name was registered on July 31, 2019. As of September 12, 2019, the disputed domain name was used for a website which replicated the Complainant’s website including its name and logo. As of September 13, 2019, typing the term “klav” into a web browser generated a search suggestion for the website at the disputed domain name including the Complainant’s logo as a “favicon”. The website at the disputed domain name was removed on September 13, 2019, following a complaint by the Complainant to the Registrar. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s trade mark as it merely replaces the second letter “i” with “l” and removes the final letter “o”. The Respondent lacks rights and legitimate interests in the disputed domain name. There is no evidence that the Respondent has used the disputed domain name in connection with a bona fide offering of services. Nor is the Respondent making a legitimate commercial use of the disputed domain name. The disputed domain name was registered and is being used in bad faith. The Respondent used the disputed domain name to phish for customer or employee personal information and/or load malware onto their computers. The website at the disputed domain name plainly attempted to harvest users’ contact and credit card details. The disputed domain name was registered primarily to disrupt the Complainant’s business by misleading the Complainant’s customers. The Complainant is intentionally attempting to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark. The Respondent’s use of a privacy service is further evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; - the Respondent has no rights or legitimate interests in respect of the disputed domain name; and - the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established rights in the mark KLAVIYO by virtue of its registered trade marks. The disputed domain name is confusingly similar to the Complainant’s trade mark. Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that the first element functions primarily as a standing requirement. The test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trade mark and the disputed domain name. Where at least a dominant feature of the relevant mark is recognisable in the disputed domain name, it will normally be considered confusingly similar to that mark for purposes of UDRP standing. Section 1.7 also observes that the overall facts and circumstances of a case (including relevant website content) may support a finding of confusing similarity, particularly where it appears that the respondent registered the disputed domain name precisely because it believed that it was confusingly similar to a mark held by the complainant. Here, the Panel notes that both the trade mark and the disputed domain name start with the same, dominant, syllable: “klav”. Also, it is plain from the Respondent’s impersonation of the Complainant that the Respondent registered the disputed domain name precisely because the Respondent considered that it was similar to the Complainant’s mark. Bearing these factors in mind, and in particular that the first element is a relatively low threshold test, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of the WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests in the disputed domain name. As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to impersonate the Complainant in a fraudulent manner. Plainly, such use of the disputed domain name could not be said to be bona fide. Nor is there any evidence that paragraph 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Complainant has produced evidence that the disputed domain name has been used for a website impersonating the Complainant, most likely for phishing purposes and/or to load malware onto users’ computers. The fact of impersonation shows that the Respondent knew of and maliciously targeted the Complainant’s trade mark when registering the disputed domain name. Given the evidence of use of the disputed domain name for a fraudulent purpose, the Panel readily concludes that it was registered and is being used in bad faith by the Respondent. The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy. 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 disputed domain name Adam Taylor
Sole Panelist
Date: January 24, 2020
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