Westmore · UDRP DecisionKlarnasmoooth.com
The Panel ordered transfer of <klarnasmoooth.com>. It found the domain confusingly similar because it combined the Complainant’s KLARNA and SMOOOTH marks in their entirety. The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. Applying the passive-holding doctrine, the Panel also found bad faith based on the relevant circumstances, including the distinctiveness or reputation of the marks, the Respondent’s default, and the implausibility of a good-faith use.
The timeline behind klarnasmoooth.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates that an inactive domain may still satisfy the UDRP bad-faith requirement where it combines a complainant’s marks, the respondent defaults, no good-faith use is evidenced, and the panel finds any plausible good-faith use unlikely. It also shows that combining two protected terms does not avoid confusing similarity when both marks remain recognizable in their entirety.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
ADMINISTRATIVE PANEL DECISION Klarna Bank AB v. El messaoudi Mustapha Case No. D2018-2754 1. The Parties The Complainant is Klarna Bank AB of Stockholm, Sweden, represented by SILKA Law AB, Sweden. The Respondent is El messaoudi Mustapha of Broek, Netherlands. 2. The Domain Name and Registrar The disputed domain name <klarnasmoooth.com> is registered with Cronon AG Berlin, Niederlassung Regensburg (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 29, 2018. On November 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 11, 2018, 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 the same date providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Center sent an email in German and English to the Parties regarding the language of the proceedings. The Complainant filed an amendment to the Complaint on December 12, 2018 and requested English to be the language of the proceedings. The Respondent did not reply on the language of the proceedings. 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 in English and in German, and the proceedings commenced on December 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 8, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2019. The Center appointed Tobias Zuberbühler as the sole panelist in this matter on January 14, 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 e-commerce company founded in 2005 that provides payment services for online storefronts. The Complainant is the owner of the trademarks SMOOOTH (European Union Trade Mark (“EUTM”) 017398751, registered on February 13, 2018), KLARNA (EUTM 009199803, registered on December 6, 2010) and KLARNA SMOOOTH PAYMENTS (EUTM 015222532, registered on August 1, 2016). The disputed domain name was registered on June 14, 2018 and is currently inactive. 5. Parties’ Contentions A. Complainant The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceedings While the Registration Agreement for the disputed domain names is in German, the Complainant has pointed out in an email to the Center of December 12, 2018 that, inter alia, the Respondent was domiciled in the Netherlands, where German is not an official language, and that the Complainant was headquartered in Sweden. Therefore, the Complainant has requested English to be the language of the proceedings. Paragraph 11(a) of the Rules stipulates 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”. Taking into account the circumstances of this case, that the Respondent was notified of the proceeding in English and in German, and the fact that the Respondent has not participated in these proceedings, the Panel does not consider it prejudicial to the Respondent if English were adopted as the language of the proceedings and will thus render its decision in this language. B. Identical or Confusingly Similar The Complainant has shown that it has rights in the KLARNA and SMOOOTH trademarks, which are combined in their entirety in the disputed domain name. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, and that the Complainant has thus fulfilled the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Complainant contends that the disputed domain name is inactive and that the Respondent is neither commonly known by the disputed domain name, affiliated with the Complainant, authorized to use the disputed domain name by the Complainant, nor making any bona fide use of the disputed domain name. Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith The disputed domain name resolves to an inactive website. 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 (cf. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.3 ). While panels 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, and (iii) the implausibility of any good faith use to which the domain name may be put. The Panel is satisfied that all of the above mentioned factors are fulfilled in the case at hand. Accordingly, the Complainant has also fulfilled paragraph 4(a)(iii) 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 <klarnasmoooth.com> be transferred to the Complainant. Tobias Zuberbühler Sole Panelist Date: January 28, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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