1. Procedural findings
Paragraph 11 of the UDRP Rules directs the Parties and the Dispute Resolution Provider to abide by the language of the registration agreement for the disputed domain name when determining the language in which a proceeding should take place.
Compliance with Paragraph 11 of the Rules thereby constitutes a condition precedent for due submission of a Complaint under the UDRP procedure. Hence, if a Dispute Resolution Provider can only offer its facilities in a language other than the one to apply on the basis of Paragraph 11, it should advise the Complainant and make a fee refund.
Correspondingly, non-compliance with Paragraph 11 makes the Complaint inadmissible and thus the Panel cannot decide on its merits.
This said, Paragraph 11 does allow some latitude.
On the one side, the Parties may agree on another language or the registration agreement's terms themselves may already provide for this.
Neither of these circumstances applies in the present proceeding. In particular, the registrar, Google, unequivocally stated in its response to the CAC Case Administrator's Request for Verification that the language of the registration agreement (which Google provided by hyperlink) is not English but French. The Panel furthermore observes that, whereas the terms of the registration agreement require legal notices to Google to be sent in English and make the agreement's law that of the US state of California (excluding Californian rules for conflict of laws), these terms do not relate to third-party dispute resolution. Instead, the agreement in that regard makes reference to Google's registrar accreditation agreement with ICANN and to ICANN's policies and rules, which include the UDRP and its Rules. In short, the agreement's authoritative language for this proceeding's purposes is the one it is written in, French.
On the other side, Paragraph 11 grants the Panel discretion to determine upon another language than that of the registration agreement "having regard to the circumstances" in the proceeding at hand.
A circumstance which the Panel needed to consider is the fact of a similar proceeding, CAC Case 103182, as explained under "Other Legal Proceedings" and "Procedural Factors" above. Yet the proper language of the proceeding was apparently not raised during that case and certainly not in the Decision. Thus, that case in itself offers no insight to which the present Panel can have regard.
Nor can the Panel consider that a mere wish on behalf of a Complainant -- to change the language to one it prefers -- suffices to qualify as a circumstance to which the Panel should have regard. This would rob Paragraph 11's clear terms of practical meaning and instead bestow on one Party to a proceeding a privilege that would fly in the face of due process.
It must be underlined here that the UDRP Rules in Paragraph 11 serve to recognize the legitimate expectation of any Respondent to read and be able to respond to allegations in the language that the Respondent understands, as signified by signature of a registration agreement. This corresponds to the reality that the Top Level Domain names to which the UDRP applies form a global facility for the benefit of domain name registrants whatever their country or language.
Further circumstances in this case that might have justified the Panel's exercise of the discretion allowed by Paragraph 11 could, though, have been evident to the Complainant. If so, it is necessary for the Complainant to provide sufficient evidence to provide a valid reason for such exercise, bearing in mind that the issue of language is a condition precedent that must be satisfied. Thus, the Complainant can bring pertinent matters to the fore, but cannot count on the Panel to sift through the Complaint in order to seek justification for a Complainant's procedural preference as to language. Again, that would contradict due process, and thereby violate the Panel's own duties of impartiality under the Rules.
In the present proceeding, the Panel observes that the Complainant and the Respondent were, by virtue of the Preliminary Findings and Procedural Order which the Panel issued, granted ample opportunity to offer evidence and reasons in respect of its preliminary findings, summarized above under "Procedural Factors". But neither Party took advantage of this opportunity.
The Panel, in light of the above, therefore confirms its preliminary finding and rules that the Complaint is not admissible.
2. Substantive findings
The Complaint not being admissible, the Panel declines to comment on its substance.
3. Re-filing
Not having been able to reach the point of making findings on the substance of the Complaint, the Panel rules that the Complaint may be re-filed, but that the Complainant must, in any refiling submitted in the English language, show sufficient evidence and reason(s) to overcome the procedural objections to its admissibility stated under point 1 above.
4. Fees of the Proceeding
The Panel takes note that the Case Administrator duly advised the Complainant of the consequences of not filing a Complaint in the language directed under the Rules and that the Complainant nevertheless chose to pursue its Complaint in English. The proceeding thereby continued to Decision with the character of a language proceeding. The Complainant's obligations as to the proceeding's fees similarly continued and these are hence not refundable.
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