This case falls to be rejected not on the merits but on the basis that the Panel is not prepared to accede to the Complainant’s request that the language of the proceedings be English. Furthermore, the Panel is unable to determine a translated Complaint and issue a corresponding decision in Italian, even had it ordered translation into what is the default language for this case under the Policy.
Paragraph 11(a) of the Rules provides 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. Here, the language of the registration agreement is Italian and therefore that is the default language of the proceeding. The Panel would have a discretion to determine that the language of the proceedings be English but, having carefully considered the substance of the Complainant’s request, declines to exercise such discretion for the following reasons:
First, the Panel notes that the Parties have not agreed an alternative language. Some other reason would need to be identified indicating that it would be fair to both Parties to depart from the default. As outlined in section 4.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), previous panels under the Policy have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. The section notes that such scenarios include (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.
Taking these scenarios in turn, (i) there is no evidence showing that the Respondent can understand the language of the Complaint. The Complaint was drafted in English. While formal notification was made by the provider to the Respondent in both the English and Italian languages, the Complaint itself was not translated into Italian. The Respondent has not filed any Response, nor has replied in any way which would suggest that it understands the substance of the Complaint. The fact that the Respondent has not responded despite having received notification of it in both English and Italian is not a sufficient justification on its own in the present Panel’s view for the default language of the proceeding to be changed; (ii) the disputed domain name is not identifiably in any language. It does not, for example, contain any English words which the Panel recognizes. It reproduces one of the Complainant’s trademarks but the Panel is not satisfied that just because the Complainant uses that mark internationally as well as in Italy it must necessarily mean that the Respondent understands English; (iii) there is no website associated with the disputed domain name and therefore there is no content available which would allow the Panel to make a reasonable inference that the Respondent has a working knowledge of English; (iv) the Complainant has cited no past cases involving the Respondent in its submissions. The Panel has been unable to identify any past cases involving the Respondent which might shed light on its proficiency in English; (v) there is no evidence of prior correspondence between the Parties from which the Respondent’s working language(s) could be inferred; (vi) the Complainant was invited by the CAC to withdraw the Complaint if it required to proceed in Italian, or to provide submissions justifying its choice of language. The Complainant chose to take the latter course. The Panel does not consider that any delay arising from the complainant refiling the complaint in Italian (if the Complainant chooses to do so) outweighs the importance of the Respondent receiving fair notice of the Complaint, including being able to read and understand it. It should not be overlooked that the Complaint sets out the fact that the Complainant is one of the largest Italian banks. It has the capability to bring this Complaint in the language of the registration agreement. The Respondent’s address as verified by the Registrar is in Italy. The administration contact of the disputed domain name is also in Italy. Even the Respondent’s name, at least to this non-Italian speaker, has the appearance of being an Italian name. It is reasonable to infer that the Respondent is an Italian speaker and understands Italian. There are no facts from which it is reasonable to infer, in the circumstances of this particular case, that the Respondent is an English speaker and/or understands English; (vii) no evidence has been presented of any other Respondent-controlled domain names suggesting any proficiency on the Respondent’s part in any particular language; (viii) this is not a multiple domain name case and there are no other domain names at issue with a registration agreement in a different language; (ix) as noted earlier, there is no website associated with the disputed domain name; and (x) there are no other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.
The focal point of the Complainant’s request is that the Complainant’s mark has been used at an international level and that English is a lingua franca internationally (including in Italy) particularly among Internet users. The Panel does not understand the Complainant to be suggesting that all people living in Italy have a proficiency in the English language, whether they are Internet users or otherwise, far less that there is any evidence that the Respondent does. No corresponding evidence to that effect was submitted with the Complaint. Extending the Complainant’s argument to its logical conclusion, any cases under the Policy involving a trademark used internationally could be brought in English notwithstanding the language of the registration agreement and in the absence of any other indicia of fairness to proceed in that language. That is plainly not the intent of the Policy, nor has that approach been typically applied by panels in previous cases.
In the circumstances of the present case, the Panel has reached the conclusion that absent any relevant indicia pointing to the contrary, the only language in which this Complaint could proceed which would be fair to both Parties is Italian. The fact that the Complaint was notified in both English and Italian by the provider (albeit that the Complaint itself was not translated into that language) and that no Response has been filed does not change the Panel’s opinion on this matter. As the Panel understands it, this Complaint could proceed with the present provider in Italian, should the Complainant decide to re-file it in a suitably translated form.
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