The dispute settlement procedure must be regulated by language in order to enforce the "right to be heard” and to prevent possible unequal treatment of the parties. Priority should be given to the parties as they know best how to communicate with each other. They must explicitly agree on one language, since the wording of § 11(a) UDRP Rules does not allow the use of different languages side by side (procedural language). If the parties do not agree on a language - which is probably the rule - the procedure is bound to the language of the registration agreement of the disputed domain name, because the domain holder only agrees to the UDRP by registering the domain name. The proper language of this proceeding is therefore the Chinese language used in the registration agreement. This was pointed out to the Complainant by the ADR provider CAC. Therefore the ADR provider CAC asked the Complainant to request a change of the language into English or if the Complainant would prefer to proceed in Chinese, the ADR provider CAC would terminate the proceedings and reimburse the Complainant the full fee.
The Complainant filed the request to change the language in an Amended Complaint because, in his view, the dispute procedure is not a remotely contentious dispute as the Complainant is able to amply demonstrate that Simba Sleep Limited holds intellectual property rights in jurisdictions worldwide and that the Respondent has registered or used the disputed domain name in bad faith.
Prima facie both reasons are not valid for a change of language, as both reasons are requirements for transferring a domain name.
The ADR provider CAC did not notify the Respondent of the discrepancy between the language of the registration agreement and the Complaint in the Chinese language. To ensure that this failure does not lead to a procedural breach, the Panel instructed the ADR provider CAC to inform the respondent by email:
本ADR程序的適當語言是註冊協議中使用的中文。投訴人要求將訴訟語言改為英文。投訴人認為，由於投訴人能夠充分證明Simba Sleep Limited在全球司法管轄區擁有知識產權，並且您以惡意註冊或使用有爭議的域名，因此仲裁程序並非遠程爭議性仲裁。請在一周內回复投訴人的請求。如果在截止日期前沒有收到回复，專家組將根據當前已知事實做出決定
In the English language:
The proper language of this ADR proceeding is the Chinese language used in the registration agreement. The Complainant requested a change of the language of the proceedings into the English language. The Complainant argues that the procedure are not a remotely contentious dispute as the Complainant is able to amply demonstrate that Simba Sleep Limited holds intellectual property rights in jurisdictions worldwide and that you registered or used the disputed domain name in bad faith. Please respond to the Complainant's request within one week. If no respond is received within the deadline, the panel will decide based on the currently known facts.
The Respondent did not comment on the request to change the language of the proceedings.
It is questionable whether the proceedings can nevertheless be continued in the English language. However, complaints are also formally accepted by Panels if they are not written in the language of the registration, if
(i) evidence showing that the respondent can understand the language of the complaint,
(ii) the language/script of the domain name particularly where the same as that of the complainant’s mark,
(iii) any content on the webpage under the disputed domain name,
(iv) prior cases involving the respondent in a particular language,
(v) prior correspondence between the parties,
(vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint,
(vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language,
(viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names,
(ix) currencies accepted on the webpage under the disputed domain name, or
(x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.
The Complainant could refer to (v) in the present proceedings, since the parties corresponded in English prior to the proceedings. However, it is doubtful if the mere use of the requested language in prior communications between the parties is sufficient as the Respondent is not a national of an English speaking country and especially if, as in the present case, it is doubtful whether the Respondent himself has sent an English-language e-mail to the Complainant. Nevertheless, the Respondent has been given the opportunity to comment on the language of the proceedings. Although the Complainant received a notice in the Chinese language, he did not comment within the deadline set.
The Panel decides to comply with the Complainant's request to change the language of the proceedings, in particular because the Respondant has not made use of the opportunity to reply to the notice in the Chinese language. In this case, the panel would have decided that the defendant is entitled to file all documents or assertions in Chinese, This would have enabled a fair balance between the interests of the parties, as both parties might then have been charged with translation costs.
|