WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING
Formlabs Inc. v. Eduard de Boer, Wezacon
Case No. DEUL2018-0002
1. The Parties
The Complainant is Formlabs Inc. of Somerville, Massachusetts, United States of America ("United States"), represented by Lewis & Lin, LLC, United States.
The Respondent is Eduard de Boer, Wezacon of Deventer, the Netherlands, self-represented.
2. The Domain Name, Registry and Registrar
The Registry of the disputed domain name <formlabs.eu> is the European Registry for Internet Domains ("EURid" or the "Registry"). The Registrar of the disputed domain name is Sitebytes B.V.
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 July 17, 2018. On July 18, 2018, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On July 19, 2018, the Registry transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 the Respondent of the Request, and the proceedings commenced on July 25, 2018. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was August 6, 2018. The Center received various email communications from the Respondent between August 5, and August 13, 2018. The Response was submitted by email on August 7, 2018.
The Center appointed Willem J.H., Leppink as the sole panelist in this matter on August 14, 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
The disputed domain name was registered on September 26, 2012. The Registry confirmed that the language of the registration agreement is Dutch.
5. Parties' Contentions
Insofar as relevant, the Complainant contends the following.
The Complainant requests that the language of the proceeding be English instead of Dutch.
The Respondent clearly understands English, has corresponded with the Complainant in English about the issues in this proceeding, and is a party to other dispute resolution proceedings concerning similar domains for which an English language response is required.
There is evidence that the Respondent can understand English and the Respondent has communicated in English about issues raised in the dispute. The Respondent has left comments on the Complainant's Kickstarter page in English.
The disputed domain name consists of the Complainant's trademark in its entirety, which is comprised of two English language words: "form" and "labs". The Respondent placed English language content on the website under the disputed domain. The disputed domain name resolves to a website containing English language content.
The Complainant was informed by a translation company that the costs to translate the Complaint to Dutch will exceed the administrative cost to initiate the proceeding. Respondent placed English language content on the website for the disputed domain.
In summary, it would not be prejudicial to the Respondent if English were adopted as the language of the proceeding. Rather, the proceeding would be unduly delayed if the Complaint and annexes thereto had to be translated into Dutch, a language neither the Complainant nor its counsel understands, and a cost that far exceeds the cost of initiating the underlying administrative proceeding.
On August 5, 2018, the Respondent replied to the Request by sending an email in Dutch and in English (using Google Translate) with an attachment containing the Response that could be downloaded through a file link. The Center has informed the Respondent on August 7, 2018 that it does not accept such submissions through a link following which the Respondent resent the Response as an attachment on the same day.
Insofar as relevant, the Respondent contends the following.
The Respondent objects in Dutch to the language change. Dutch is his native language and he only poorly understands English. The arguments of the Complainant are not very clear and the disputed domain name is in use in the Benelux/Europe. The Respondent will need representation for dealing with an English language Complaint which will lead to extra costs.
6. Discussion and Findings
The Response was received one day too late, but the Panel accepts this Response as the Respondent attempted to send the Response within the deadline, albeit in a form that was unacceptable to the Center. As the Respondent immediately re-submitted the Response in an acceptable form after having been informed of the foregoing, the Panel finds such delay excusable.
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 Panel is aware that the Respondent is involved in similar parallel domain name proceedings under the Uniform Dispute Resolution Policy (UDRP) and the Dispute Resolution Regulation for .nl Domain Names (".nl Regulations"). These proceedings do not have a language regime which is as strict as the ADR Rules and do not have a procedure to request the change of the language of the proceedings. Furthermore, a respondent in a proceeding under the UDRP or the .nl Regulations may submit its documents in the language of the registration agreement and it will be for the panel to decide whether it will accept such submissions.
The ADR Rules force the Panel to take a decision which either will require the Complainant to submit its Complaint in Dutch or to require the Respondent to submit its Response in English.
The Panel would be inclined to accept a change of the language to English if the Respondent would have an excellent command of English or if it would not be likely that it will seriously defend a complaint.
From reviewing the case file, the Panel is of the view that the use of English by the Respondent is substandard. The Panel does not rule out that for his communications in English, the Respondent has used Google Translate. It is clear that the communications are not "legal English". In addition, it is clear that the Respondent is eager to defend a complaint, although it is – unlike the Complainant – not represented by professional counsel.
On balance, the Panel takes the view that the right for the Respondent to properly defend itself outweighs the costs and inconvenience of a translation of the Complaint by the Complainant.
For the foregoing reasons, the Request is denied.
Willem J.H. Leppink
Date: August 30, 2018