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
