WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Klarna AB v. pan jing
Case No. D2019-1795
1. The Parties
The Complainant is Klarna AB, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is pan jing, China.
2. The Domain Name and Registrar
The disputed domain name <klarna.pro> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 26, 2019. On July 26, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 29, 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 July 31, 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 in English an amendment to the Complaint on July 31, 2019.
On July 31, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On July 31, 2019, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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, in English and Chinese, of the Complaint, and the proceedings commenced on August 8, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 28, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2019.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on September 10, 2019. 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 is a Swedish payment services company that provides payment solution for e-commerce operators. The Complainant was founded in Sweden in 2005, and grew quickly, currently providing its services to about 45 million consumers and working with approximately 65,000 merchants. The Complainant is also active in the Respondent’s home jurisdiction China, where the Complainant has a cooperation agreement with, amongst others, AliPay, through which it provides a “Pay later” service to consumers.
The Complainant owns a trademark portfolio protecting the sign KLARNA (both word marks and device marks), including, amongst others, the following trademark registrations: International trademark registration number 1217315, registered on March 4, 2014, and designating, amongst others, China and the Russia Federation; and Chinese trademark registration number 14203834, registered on May 21, 2015. The disputed domain name was registered on November 20, 2018, and is linked to a website which offers the disputed domain name for sale, in both English and Chinese.
5. Parties’ Contentions
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademark for KLARNA, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.
The Complainant essentially claims that its trademark is famous and well-regarded in the e-commerce sector, and provides evidence of its marketing materials, including the contents of its official website. Moreover, the Complainant provides evidence that the disputed domain name is linked to an active webpage where the disputed domain name is offered for sale. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name, and constitutes use in bad faith. The Complainant also provided, in its email of July 31, 2019 amending its Complaint, a number of previous UDPR panel decisions involving the Respondent, on the basis of which it contends that the Respondent has engaged in a pattern of bad faith behavior.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Issue: Language of proceedings
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceedings shall be the language of the Registration Agreement. However, the Panel is given the authority to determine a language of proceeding other than the language of the Registration Agreement, taking into account the circumstances of every individual case.
The Complainant states in its Complaint that, to the best of its knowledge, the Registration Agreement is written in Chinese. Nevertheless, the Complainant filed its Complaint in English, including a motivated request that the language of proceedings be English. On July 31, 2019, the Center sent a communication to both Parties, in English and Chinese, regarding the language of the proceeding. On July 31, 2019, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English; the lack of comment on the language of the proceeding and the lack of response on the merits of the Respondent (the Panel notes that the Respondent had the opportunity to put forward arguments in either English or Chinese); the fact that the website linked to the disputed domain name is bilingual, in both English and Chinese, from which the Panel deducts that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English.
6.2. Discussion and Findings on the merits
The Policy requires the Complainant to prove three elements:
(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 used in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has shown that it has valid rights in the mark KLARNA based on its intensive use and registration of the same as a trademark in several jurisdictions, incidentally commencing several years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity, the disputed domain name consists of the Complainant’s registered trademark KLARNA, combined with the Top-Level Domain “.pro”. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1, 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”. Accordingly, the Panel rules that the disputed domain name is identical to the Complainant’s trademarks and the first element required by the Policy is fulfilled.
B. Rights or Legitimate Interests
The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant’s trademark. To the contrary, the website linked to the disputed domain name currently only displays an offer for sale of the disputed domain name, which in the circumstances cannot be considered a bona fide offering of goods or services or a noncommercial or fair use (see also Bayerische Motoren Werke AG v. James Vergis, Stressfree Driving School Pty Ltd, WIPO Case No. D2017-0071). The Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. Furthermore, the Respondent is not commonly known by the disputed domain name. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy.
C. Registered and Used in Bad Faith
The registration of the disputed domain name, which is identical to the Complainant’s trademarks, is clearly intended to mislead and divert consumers away from the Complainant’s official website, to the disputed domain name. Given the distinctiveness and fame of the Complainant’s trademark, including in the Respondent’s home jurisdiction China, the Panel holds that the registration of the disputed domain name was obtained in bad faith. Moreover, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned registered trademarks in KLARNA and used these extensively. In the Panel’s view, the preceding elements clearly establish the bad faith of the Respondent in registering the disputed domain name.
As to use of the disputed domain name in bad faith by the Respondent, the website linked to the disputed domain name currently only displays a message that the disputed domain name is for sale, and provides a hyperlink to an online platform where a bid can be placed to buy such disputed domain name. This leads the Panel to conclude that the Respondent is using the disputed domain name to sell it in excess of the out-of-pocket costs related to the disputed domain name. In this regard, paragraph 4(b) of the Policy states that registering a domain name “primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name” constitutes evidence of bad faith. Moreover, the Panel has reviewed several UDPR decisions provided by the Complainant, in which the Respondent was involved, and in which the panels have concluded that the Respondent had engaged in cybersquatting (see for instance Klarna AB v. Pan Jing, WIPO Case No. D2019-1325), from which the Panel deducts that the Respondent has engaged in a pattern of trademark-abusive domain name registrations. On the basis of the foregoing elements, the Panel rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under the Policy.
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.pro> be transferred to the Complainant.
Deanna Wong Wai Man
Date: September 17, 2019