WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING

Andrey Ternovskiy dba Chatroulette v. Maria Di Blasi

Case No. DEUL2018-0004

1. The Parties

Complainant is Andrey Ternovskiy dba Chatroulette of Sliema, Malta, represented by CSC Digital Brand Services AB, Sweden.

Respondent is Maria Di Blasi of Salzburg, Austria.

2. The Domain Name, Registry and Registrar

The disputed domain name is <chatroulette-gay.eu> (the “Domain Name”).

The Registry of the Domain Name is the European Registry for Internet Domains (“EURid” or the “Registry”). The Registrar of the Domain Name is webagentur.at internet services gmbh (“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 October 5, 2018. On the same day, the Center transmitted by email to the Registry a request for registrar verification in connection with the Domain Name. On October 8, 2018, the Registry transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.

In accordance with the ADR Rules, Paragraph A(3)(b)(3), the Center formally notified Respondent of the Request, and the proceedings commenced on October 9, 2018. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was October 28, 2018. Respondent did not submit a Response. Accordingly, the Center notified the Parties of Respondent’s default on October 29, 2018.

The Center appointed Ingrida Kariņa-Bērziņa as the sole panelist in this matter on November 2, 2018 in accordance with the ADR Rules, Paragraph A(3)(b)(4). 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 the owner of the Chatroulette brand and trademark (hereinafter referred as CHATROULETTE). Chatroulette is the name of an online video chat website, established in 2009, that enables random people to meet and communicate in real time. Complainant has registered the CHATROULETTE trademark in various countries.

Respondent is a resident of Austria whose contact information was disclosed by the Registry upon the Center’s transmission of a Request for Registrar Verification in connection with the Domain Name on October 5, 2018. The Registry verified that the specific language of the Registration Agreement for the Domain Name is German.

On September 4, 2018, Complainant’s legal representative sent a cease and desist letter in English to Respondent, who did not respond to said letter. On September 10, 2018, a second and final notice was sent to Respondent, to which the latter did not respond. The record does not show any communication from Respondent.

5. Parties’ Contentions

A. Complainant

Complainant requests that the language of the ADR Proceeding be English instead of German. As set forth by Paragraph A(3)(b)(1)(iii) of the ADR Rules, Complainant has specified the following circumstances to justify a change of language of this ADR Proceeding from German to English:

(1) Complainant is located in Malta and has no knowledge of the German language; translation of the Complaint would unfairly disadvantage and burden Complainant and delay the proceedings and adjudication of this matter;

(2) Respondent has registered the Domain Name incorporating Complainant’s trademark, only to have it resolve to a pay-per-click site and offer it for sale. Considering this obviously abusive nature of the Domain Name, any additional delay poses a continuing risk to Complainant and unsuspecting consumers seeking Complainant and its business;

(3) the Domain Name is comprised of English words; the content of the page is all in English;

(4) the term “chatroulette” does not carry any specific meaning in German;

(5) Complainant previously sent cease and desist letters to Respondent and Respondent had ample time and opportunity to respond to such letters and request that communications continue in German. Respondent neither issued such a request nor responded to Complainant in any matter whatsoever. Allowing Respondent to dictate the course of this matter and further burden Complainant at this juncture would contravene the spirit of the dispute resolution proceeding and disadvantage Complainant;

(6) In light of Respondent’s use of the Domain Name and Respondent’s decision to register a domain name that misappropriates the famous CHATROULETTE mark and brand, it would unduly burden Complainant to have to arrange and pay for a translation where Respondent has demonstrated behavior that disrupts Complainant’s business and has already required Complainant to devote significant time and resources to addressing this instance of abuse. Even in instances where a registration agreement was in a language other than English, past Panels have made the decision to allow a case to proceed in English based on the totality of circumstances in that case (see, Carrefour v. The Company Manager Limited Domain / Maria Di Blasi, WIPO Case No. DEUL2017-0002; Dama S.p.A. v. Duan Zuochun, WIPO Case No. D2012-1015).

B. Respondent

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 notes the circumstances of the ADR Proceeding and 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. Moreover, according to Paragraph B(7)(c) of the ADR Rules, the Panel shall ensure that the ADR Proceeding takes place with due expedition.

The Panel recognizes that the ADR Rules are considered a variation of the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and follows the consensus view that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Those scenarios include, inter alia, (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 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 Complainant to translate the complaint, […] 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. (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview”), section 4.5.1, see also Carrefour v. The Company Manager Limited Domain / Maria Di Blasi, WIPO Case No. DEUL2017-0002).

Reviewing these factors, the Panel finds that there is no direct evidence in the record of this case concerning whether Respondent understands English. There is no correspondence between the parties. However, the Panel notes that the Domain Name is comprised of a combination of English words, and incorporated the Complainant’s CHATROULETTE mark entirely. The content on the webpage under the Domain Name, although minimal, is in English.

Complainant has communicated with Respondent by sending cease and desist letters in English. Respondent had the time and opportunity to respond to such letters and request that communications continue in German, but did not do so.

The Panel finds that Respondent has been involved in a previous case in English, namely, Carrefour v. The Company Manager Limited Domain / Maria Di Blasi, WIPO Case No. DEUL2017-0002.

Finally, the Panel finds that this proceeding concerns a domain name under the Top-Level Domain “.eu”, which, as has been found by previous Panels, has a supranational character, rather than a national character that would be related to the German language. Having 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”, it has a European character (see Carrefour v. The Company Manager Limited Domain / Maria Di Blasi, WIPO Case No. DEUL2017-0002).

Accordingly, in light of the above, the Panel finds that the evidence submitted by Complainant justifies the change of language of the proceeding. The Panel concludes that the change of language would not treat Respondent unfairly, considering that the Domain Name is comprised of English words, the content on the webpage under the Domain Name is in English, Respondent did not submit any Response to challenge the request, and Respondent has been involved in a previous case in English.

7. Decision

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).

Ingrīda Kariņa-Bērziņa
Sole Panelist
Date: November 14, 2018