WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Klarna Bank AB v. Shen Zhong Chao
Case No. D2017-2491
1. The Parties
The Complainant is Klarna Bank AB of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Shen Zhong Chao of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <klarna-bank.com> is registered with HiChina Zhicheng Technology Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on December 15, 2017. On December 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 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 December 20, 2017, the Center sent 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 December 21, 2017. The Respondent did not comment on the language of the proceeding 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 in English and Chinese of the Complaint, and the proceedings commenced on December 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 18, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on January 24, 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, founded in 2005, is a Swedish bank that provides online financial services such as payment solutions for online stores. Its online services include debt collection and credit payments. About 40% of all e-commerce sales in Sweden go through Klarna. There are currently 18 branches including Sweden, Finland, Norway, Denmark, Germany, Austria, Netherlands, Switzerland, Belgium, France, United Kingdom of Great Britain and Northern Ireland, Italy, Spain, Poland, Hungary, Slovakia, Czech Republic, and the United States of America. The Complainant has some 1,600 employees.
The Complainant is the proprietor of international trademark registrations for KLARNA, KLARNA AB, and "K", registered under Nos. 1217315, 1182130 and 1066079, US registration Nos. 79138646 and 79152526, Australian registration No. 1650175, and Canadian registration No. 1666454.
The Complainant is currently undergoing a name change for their trademark, from Klarna to Klarna Bank AB.
The Complainant is also the owner of the domain names <klarnabank.com> and <klarnabank.se>.
The Respondent is an individual based in Beijing, China.
The disputed domain name was registered on June 20, 2017. The disputed domain name does not resolve to any active website.
The Complainant sent a cease and desist letter to the Respondent, to which the Complainant received a substantive reply in English.
5. Parties' Contentions
Identical or Confusingly Similar
The Complainant contends that the disputed domain name <klarna-bank.com> and the trademark KLARNA are confusingly similar. The disputed domain name contains KLARNA in its entirety as the distinctive part of the disputed domain name. The additional hyphen is punctuation and the English word "bank" refers to the nature of the Complainant's business. The addition of the word "bank" increases the likelihood of confusion with the Complainant, which is a bank.
Rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for KLARNA. It, therefore, has no rights or legitimate interests in the disputed domain name.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant's rights in the KLARNA trademark given its reputation and the fact the disputed domain name incorporates the word "bank". It submits the Respondent acquired the disputed domain name to disrupt the business of the Complainant and to prevent the Complainant from reflecting its mark in a corresponding domain name.
The Respondent did not respond to the Complainant's contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the 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 use in bad faith.
6.1. Language of the Proceedings
The Language of the Registration Agreement is in Chinese.
The Complainant requests that the language of proceedings be English on the grounds that based on the reply received from the Respondent to the Complainant's cease and desist letter the Respondent understands, reads and writes English, the domain name consists of English words and the Respondent has previously registered multiple domain names containing English words. .
The Respondent did not respond to the language request.
Paragraph 11(a) of the Rules provides that:
"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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."
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) seek to appoint a Panel familiar with both languages mentioned above.
The final determination of the language of the proceedings lies with this Panel. The Respondent did not respond to the Center's preliminary determination. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceedings "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint".
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant.
Translating the Complaint would cause unnecessary delays and expense. The Respondent replied to the Complainant's cease and desist letter in English. These factors lead the Panel to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its Decision in English.
6.2 Substantive Issues
A. Identical or Confusingly Similar
The disputed domain name <klarna-bank.com>, other than the hyphen is confusingly similar to the Complainant's trademark KLARNA. The disputed domain name incorporates the Complainant's KLARNA mark in full with the addition of the hyphen and the word "bank". The disputed domain name is therefore confusingly similar to the Complainant's registered trademark.
The Panel notes that the Complainant does not rely on any registered trademarks for KLARNA in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel's further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")).
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
"While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element."
The Complainant owns numerous trademarks around the world. The Respondent has no business or any kind of relationships (licensee, distributor, etc.) with the Complainant.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy sets out ways in which a respondent may establish it has rights and legitimate interests. These are:
"(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant's trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name <klarna-bank.com> was registered in bad faith and is being used in bad faith.
Based on the evidence before it, the Panel has no hesitation in finding that the disputed domain name <klarna-bank.com> was registered in bad faith and is being used in bad faith. The Respondent clearly knew of the Complainant when it registered the disputed domain name, as it comprises of not only the Complainant's mark and is identical to the Complainant's registered domain name but also the word "bank" that describes the nature of the Complainant's business. This serves as strong evidence of the Respondent's knowledge.
While the disputed domain name has not yet been used, this does not prevent a finding of bad faith. The Panel notes here that a domain name can also be "used" for example to send emails without website content. Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain in bad faith. (See section 3.2 of the WIPO Overview 3.0).
The third part of the paragraph 4(a) of the Policy is therefore satisfied.
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 <klarna-bank.com> be transferred to the Complainant.
Date: February 7, 2018