WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
International Business Machines Corporation (IBM) v. Zijianyuan (袁子建)
Case No. D2020-2419
1. The Parties
The Complainant is International Business Machines Corporation (IBM), United States of America, represented internally.
The Respondent is Zijianyuan (袁子建), China, self-represented.
2. The Domain Name and Registrar
The disputed domain name <ibm.store> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”), in English, on September 16, 2020. On September 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 22, 2020, 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 September 22, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 22, 2020.
On September 22, 2020, the Center sent an email communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 22, 2020, the Complainant requested that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding, but sent two email communications, in Chinese, on September 26 and 29, 2020, indicating that he has already given up the disputed domain name. On September 29, 2020, the Center sent an email regarding possible settlement to the Parties. No suspension was requested by the Complainant.
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, and the proceeding commenced, on October 6, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2020. The Respondent sent two further email communications on October 7 and 18, 2020. The Response was filed, in Chinese, with the Center on October 25, 2020. On October 27, 2020, the Center informed the Parties that it would proceed to appoint the Panel.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 2, 2020. 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. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Complainant requested that the language of the proceeding be English, for several reasons.
The Respondent did not respond to the Center’s email communication regarding the language of the proceeding and did not request that the language of the proceeding be Chinese, but indicated in one of his informal email communications with the Center that he has difficulty reading English. The Respondent was nonetheless able to file his Response (in Chinese), which demonstrates that he was able to understand, and respond to, the English language Complaint apparently without significant difficulty.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding, in particular as this matter is not contested, the Respondent having confirmed his consent to transfer of the disputed domain name.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
5. Consent to Transfer
As indicated above, the Respondent has submitted two emails on September 26 and 29, 2020 in which he indicated “I had given up the domain name due to business adjustments”. The Respondent confirmed in his Response in Chinese on October 25, 2020 his consent to the transfer of the disputed domain name to the Complainant. The Panel considers, in the circumstances, it is appropriate to order transfer of the disputed domain name solely on the basis of such unilateral consent from the Respondent (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.10). See also Leica Microsystems IR GmbH v. Tong Chuang, WIPO Case No. D2016-2316.
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 <ibm.store> be transferred to the Complainant.
Sebastian M. W. Hughes
Date: December 16, 2020