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WIPO Arbitration and Mediation Center

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

Al Fakher International Co. v. Hosting2GO B.V., WhoisProtect / Haddouch, Mohammed, waterpijpwebshop.nl

Case No. DEUL2019-0001

1. The Parties

The Complainant is Al Fakher International Co., Cayman Islands, represented by Turunç, Turkey.

The Respondent is Hosting2GO B.V., WhoisProtect, the Netherlands / Haddouch, Mohammed, waterpijpwebshop.nl, the Netherlands.

2. The Domain Name, Registry and Registrar

The disputed domain name is <alfakher.eu> (the “Disputed Domain Name”).

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 CSL GmbH Computer Service Langenbach d/b/a joker.com.

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 May 28, 2019. On the same day, the Center transmitted by email to the Registry a request for registrar verification in connection with the Disputed Domain Name. On May 29, 2019, the Registry 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 Request. The Center sent an email communication to the Complainant on June 3, 2019, providing the registrant and contact information disclosed by the Registry, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on June 3, 2019.

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 June 4, 2019. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was June 16, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 17, 2019.

The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on June 24, 2019, in accordance with the ADR Rules, Paragraph A(3)(b)(5). 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 by the Respondent on October 3, 2011. It resolves to a website completely written in Dutch that offers for sale tobacco and shisha products branded “Al Fakher”. The website connected to the Disputed Domain Name displays a message written in Dutch that translates to “Welcome to the biggest Al Fakher website / webshop of the Netherlands”.

The language of the registration agreement used by the Respondent to register the Disputed Domain Name is Dutch, as confirmed by the Registry.

5. Parties’ Contentions

A. Complainant

The Complainant requests the language of the ADR Proceeding to be English.

The Complainant states that it is an international company established in the Cayman Islands and that it has no business in the Netherlands nor any knowledge of the Dutch language. The Complainant contends that submitting a Complaint in Dutch would impede the Complainant to submit its Complaint and establish the facts in full and in detail. The Complainant concludes that the use of English as language of the ADR Proceeding is therefore needed to conduct the process without hindrance.

B. Respondent

The Respondent did not reply to the 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”.

Given the similarities between the ADR Rules and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel finds UDRP precedent to be relevant to this case. UDRP panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. 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 (see, section 4.5 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

In the present case, the language of the registration agreement used by the Respondent to register the Disputed Domain Name is Dutch, as confirmed by the Registry. The Respondent is located in the Netherlands.

The Disputed Domain Name resolves to a website completely written in Dutch that offers for sale tobacco and shisha products branded “Al Fakher”. There are no pages or specific content on the website written in English, except for a single mention of “The Netherlands” on the contact page. There are no other elements on the website that point to the fact that the Respondent would understand English. The Disputed Domain Name does not contain English terms. All the pages and the corresponding hyperlinks are in Dutch and the other domain names referred to on the website, namely <waterpijpwebshop.nl> and <waterpijpconcurrent.nl>, contain Dutch terms.

The Panel did not find any prior cases involving the Respondent that would indicate that the Respondent understands English. The Complainant did not show any prior correspondence with the Respondent that would indicate that the Respondent understands English.

Although the Respondent did not reply to the Request, the Complainant does not provide any convincing arguments that would indicate that the Respondent understands English and that the change of language would ensure the rights of the Respondent to defend itself and the right to equal treatment. The Complainant simply contends that its own lack of knowledge of the Dutch language would unduly hinder its ability to file a proper Complaint. The Panel does not find this argument convincing since the Complainant may seek outside counsel – as it has done for the present Request – that commands both Dutch and English.

7. Decision

For the foregoing reasons, the Request is denied. The language of the ADR Proceeding shall be Dutch.

This Panel’s decision shall be final and not subject to appeal.

Flip Jan Claude Petillion
Sole Panelist
Date: July 4, 2019

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