WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING
Carrefour v. The Company Manager Limited Domain / Maria Di Blasi
Case No. DEUL2017-0002
1. The Parties
Complainant is Carrefour of Boulogne Billancourt, France, represented by Dreyfus & Associés, France.
Respondent is The Company Manager Limited Domain of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom") / Maria Di Blasi of Salzburg, Austria.
2. The Domain Name, Registry and Registrar
The disputed domain name is <carrefour-romagna.eu>.
The Registry of the disputed domain name is the European Registry for Internet Domains ("EURid" or the "Registry"). The Registrar of the disputed domain name is webagentur.at internet services gmbh (the "Registrar").
3. Procedural History
The Request to Change the Language of the ADR Proceeding (the "Request") was filed in English with the WIPO Arbitration and Mediation Center (the "Center") pursuant to the .eu Alternative Dispute Resolution Rules (the "ADR Rules"), Paragraph A(3)(b), on November 30, 2017. On December 1, 2017, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On December 5, 2017, the Registry transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from named Respondent and contact information in the Request. The Center sent an email communication to Complainant on December 6, 2017 providing the registrant and contact information disclosed by the Registry, and inviting Complainant to submit an amendment to the Request. Complainant filed an amended Request on December 7, 2017.
The Center verified that the Request together with the amended Request satisfied the formal requirements of the ADR Rules and the World Intellectual Property Organization Supplemental Rules for .eu Alternative Dispute Resolution Rules (the "Supplemental Rules").
In accordance with the ADR Rules, Paragraph A(3)(b)(3), the Center formally notified Respondent of the Request in both English and German, and the proceedings commenced on December 11, 2017. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was December 23, 2017. Respondent did not submit a Response. Accordingly, the Center notified Respondent's default on December 28, 2017 in both English and German. Due to an administrative oversight regarding notification of the Request, the due date for submission of a Response was extended to January 2, 2018. Respondent did not submit any communications to the Center. Accordingly, the Center notified Respondent's default on January 4, 2018 in both English and German.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on January 15, 2018. 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 ADR Rules, Paragraph B(5).
4. Factual Background
Complainant is a company organized under the laws of France and the Carrefour group of companies belongs to the worldwide leading hyper market chains with over 12,000 stores in more than 30 countries worldwide.
Respondent is a resident of Austria whose contact information were disclosed by the Registry upon the Center's transmission of a request for Registrar verification in connection with the disputed domain name on December 1, 2017.
On September 21, 2017, Complainant's legal representative had sent a cease and desist letter to the Registrant listed in the Registry's WhoIs for the disputed domain name, which was answered on September 25, 2017 by a company named domainname.de that replied on behalf of the owner of the disputed domain name in order to negotiate the potential sale of the latter for its out of pocket expenses of EUR 150. Further email exchange between the Parties took place on October 2017. All of this pre-procedural communication was held in English.
5. Parties' Contentions
As set forth by Paragraph A(3)(b)(1)(iii) of the ADR Rules, Complainant has specified the following circumstances in order to justify its request for a change of language of this ADR Proceeding from German (which is the presumed language of the Registration Agreement for the disputed domain name and also is provided for as the language for the Registrant and the Technical contact in the EURid WhoIs database) to English:
(1) Complainant is located in France and has no knowledge of the German language; it would have to retain specialized translation services at costs that are likely to be higher than the overall costs for an ADR proceeding and would impose an undue burden on Complainant;
(2) the company domainname.de, acting on behalf of Respondent, communicated in English and the former Registrant of the disputed domain name manager Limited Domain is incorporated in the United Kingdom, which shows that Respondent effectively understands and is able to communicate in English;
(3) English is the primary language for international relations and is one of the working languages of the Center.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
In accordance with Paragraph A(3)(a) of the ADR Rules, "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the ADR Proceeding shall be the language of the Registration Agreement for the disputed domain name. In the absence of an agreement between the Parties, the Panel may in its sole discretion, having regard to the circumstances of the ADR Proceeding, decide on the written request of a Complainant that the language of the ADR Proceeding will be different than the language of the Registration Agreement for the disputed domain name."
The Registry in this case has confirmed that the language of the Registration Agreement is German. The Panel, in rendering its decision, has taken into account that, within its general powers set forth by Paragraph B(7)(b) of the ADR Rules, the Panel shall ensure that the parties are treated fairly and with equality and according to Paragraph B(7)(c) that the ADR proceeding takes place with due expedition. Moreover, given that the ADR Rules are considered a variation of the Uniform Domain Name Dispute Resolution Policy ("UDRP"), the Panel recognizes that there is a consensus view among UDRP panelists to find in certain scenarios for a language of proceeding other than that of the registration agreement for the disputed domain name including (i) evidence showing that the respondent can understand the language of the complaint, (ii) prior correspondence between the parties, (iii) potential unfairness or unwanted delay in ordering the complainant to translate the complaint or (iv) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.5.1).
Against this background, the Panel notices that Complainant is a worldwide active group of companies with over 12,000 stores in more than 30 countries which is why the Panel is not satisfied that merely due to the fact that Complainant is headquartered in France, it must be found that Complainant has no knowledge of the German language, though according to Complainant's official website at "www.carrefour.com", Complainant has no particular business in the German speaking parts of Europe, including Germany, Austria or Switzerland. In turn, Respondent apparently is an individual residing in Austria that has chosen to register the disputed domain name through a registrar located in Austria, using a registration agreement in German. These circumstances are in principle against Complainant's request to change the language of this ADR proceeding away from German to English.
By the same time, Respondent obviously chose to register the disputed domain name through a privacy service located in the United Kingdom and, moreover, apparently instructed its Registrar to negotiate with Complainant on a transfer of the disputed domain name in English. This English speaking communication between the parties continued even after the identity of Respondent, being the underlying registrant of the disputed domain name, was disclosed to Complainant. At no point, Respondent, by itself or through its Registrar and/or domain name broker, signalized to Complainant that it would prefer to communicate in the official language provided for in the EURid WhoIs database for the disputed domain name or even that Respondent had no command of the English language. The Panel also agrees with Complainant's line of argumentation that English is the primary language for international relations. Moreover, the Panel recognizes that this proceeding concerns a domain name under the top-level-domain ("TLD") ".eu" which (other than, e.g., a domain name under the country-code TLDs ".at", ".ch" or ".de") in and by itself is not of a national character that somehow refers to the German language, but on the contrary of a supranational, namely European character as it has been introduced in 2002 by Regulation (EC) No. 733/22 in order to "provide a clearly identified link with the Community, the associated legal framework, and the European market place". All of these circumstances justify the conclusion that Respondent has command of the English language.
Having said so, requesting Complainant to carry out this proceeding in German would indeed be construed and, therefore, impose a cost intensive burden on Complainant for necessary translation work not justified under the circumstances to this case. At the same time, leading this proceeding in English apparently does not treat Respondent unfairly, especially when taking into account that Respondent did not submit any Response, and also supports this proceeding to take place with due expedition.
For the foregoing reasons, in accordance with Paragraph A(3)(b)(6) of the ADR Rules, the Panel orders that the language of the ADR proceeding shall be English.
This Panel's decision shall be final and not subject to appeal (Paragraph A(3)(b)(6) of the ADR Rules).
Stephanie G. Hartung
Date: January 23, 2018