There are a number of procedural complications in this case. They are as follows:
(i) The Complainant filed the Complaint in English rather than in Japanese (i.e. the language of the registration agreement);
(ii) The CAC’s online platform currently does not work in Japanese;
(iii) The response to the complaint is not administratively correct;
(iv) The Panel decided that an additional fee was due from the Complainant.
Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the parties, or otherwise specified 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.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective cases.
The language of the Registration Agreement for the disputed domain names is Japanese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and then requested change of the language of the proceeding to English.
The Panel notes that:
(a) the Provider has notified the Respondent of the proceeding in both Japanese and English;
(b) the Respondent has been given the opportunity to present its case in this proceeding and to respond formally to the issue of the language of the proceeding;
(c) the content displayed on the website corresponding to the disputed domain name <www.WWWBOURSORAMA.CO> is in English;
(d) the Respondent, in response to the notification of the complaint, submitted an email in English;
(e) the Respondent did not respond to nor contest the Complainants’ request for a change of the language from Japanese to English.
Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.
The Panel has also taken into consideration the fact that to require the Complaint and all supporting documents to be re-filed in Japanese would cause an unnecessary burden of cost to the Complainant and would unnecessarily delay the proceeding.
Having considered all the above matters, the Panel determines under paragraph 11(a) of the Rules that (i) it will accept the Complaint and all supporting materials as filed in English; and (ii) English will be the language of the proceeding and the decision will be rendered in English.
Formal Deficiencies of the Response
There is no provision regulating the consequences for responses that do not meet the formal requirements comparable to paragraph 3(b) of the UDRP Rules for complaints. Whether and under what conditions responses are to be taken into account if they do not satisfy the formal requirements of paragraph 5 of the UDRP Rules has been determined differently by different panels. The majority of the panelists assume that they are entitled at their discretion to determine whether to consider responses which are formally incorrect (Young Genius Software AB v. MWD, James Vargas, WIPO Case No. D2000-0591 - <younggenius.com>).
In this case, the Panel finds that the fact that the Respondent’s response was submitted solely via email does not prejudice the Complainant and therefore, at its discretion, accepts the Response.
Indeed, the Panel, having regard to the information available and the circumstances of the case, finds that to accept the Respondent’s response, as will be shown in the following section, it is not detrimental to the Complainant’s case. On the contrary, the assertion made by the Respondent reinforces the Complainant’s claims regarding bad faith registration of the disputed domain name.
Additional fee
The Panel’s decision that an additional fee was due from the Complainant is principally motivated by the fact that it is this Panel’s opinion that cases that present circumstances such as those at issue cannot be treated in a simplified decision.
In view of all of the above, the Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
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