WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING
Callaway Golf Company, Travismathew LLC and Jack Wolfskin Ausrüstung Für Draussen GmbH & CO. KGAA v. Rūdis Berzins
Case No. DEUL2021-0004
1. The Parties
The Complainants are Callaway Golf Company, United States of America (“United States”), Travismathew LLC, United States and Jack Wolfskin Ausrüstung Für Draussen GmbH & CO. KGAA, Germany (collectively referred as “the Complainant”), represented by SILKA AB, Sweden.
The Respondent is Rūdis Berzins, Latvia.
2. The Domain Name, Registry and Registrar
The disputed domain name is <travismathew.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 TLD Registrar Solutions Ltd.
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 22, 2021. On July 23, 2021, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On July 30, 2021, 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 August 6, 2021 providing the registrant and contact information disclosed by the Registry, and inviting the Complainant to submit an amendment to the Request. The Complainant filed an amendment to the Request on August 6, 2021.
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 August 20, 2021. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was September 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2021.
The Center appointed Michal Havlík as the sole panelist in this matter on September 10, 2021 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
The Complainant in this administrative proceeding is two companies incorporated in the United States of America and one company incorporated in Germany.
The Respondent is located in Riga, Latvia.
The disputed domain name was registered on July 24, 2020. The language of the registration agreement is Czech. The disputed domain name does not currently resolve to any active website and is not being used. Pursuant to the Request, the Respondent was previously using the disputed domain name to redirecting to a number of several adult-oriented websites, and the Complainant has sent emails demanding suspension of the disputed domain name to its Registrar.
5. Parties’ Contentions
For the purpose of the request to change the language of the ADR Proceeding from Czech language to English language, the Complainant invokes particularly the following arguments.
The Complainant claims that the disputed domain name was registered with TLD Registrar Solutions, a London-based Registrar. According to the Complainant, it is thus likely to conclude that the communications between the Respondent and the Registrar were in English language. Furthermore, the Complainant claims that according to the 2020 edition of the “EF English Proficiency Index”, the Czech Republic ranks #19 in the Global Ranking of Countries and Regions, being the young population of the country considered as “highly proficient” in English and it is thus likely that the Respondent is able to communicate in English. Moreover, the Complainant notes that the disputed domain name is comprised of two English names: “Travis” and “Mathew”. According to the Complainant, whereas the equivalent for “Mathew” in Czech is “Matěj” or “Matouš”, the name “Travis” does not have any equivalent in the said language. The Complainant is of the opinion that this additional evidence serves to reinforce that the Respondent not only is familiar with the Complainant’s TRAVIS MATHEW mark (reproduced in full in the disputed domain name), but also it is with the English language. Furthermore, the Complainant claims that English is the primary language for international relations. Besides, with reference to this fact, the Complainant highlights that this proceeding concerns a domain name under the Top-Level Domain (“TLD”) “.eu”, which (unlike other country-code TLDs like “.cz”) refers to a supranational, European character. In addition to the above-mentioned, the Complainant claims that the Complainant is located in the United States and in Germany, and they have no knowledge of Czech and that all the previous correspondence with the Registrar of the Domain Name took place in English language. In addition to all of the above reasons, the Complainant claims that it is important to highlight for a better understanding of the proceeding that the disputed domain name is identical to Complainant’s TRAVIS MATHEW mark and that – although the disputed domain name is currently inactive it previously redirected to a number of several adult-oriented websites, which amounts to bad faith use in the opinion of a number of panels under the ADR Rules.
Given the above, the Complainant contends that filing the Complaint in Czech language would be inequitable for both parties, it would cause undue delay of these proceedings and it would increase the overall cost for the proceedings for necessary translation work, which is not justified under the circumstances to this case. Therefore, the Complainant respectfully requests the language of the ADR Proceeding to be English instead of the language of the registration agreement.
The Complainant additionally claimed that the Respondent is undoubtedly not located in the Czech Republic, but rather in Latvia where the official language is not Czech but rather Latvian. According to the Complainant, in Latvia, English proficiency is ranked High Proficiency according to the “EF English Proficiency Index” which further supports that the Respondent is familiar with English language.
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.”
The Complainant bases his Request on the argument that filing the Complaint in Czech language would be inequitable for both parties, it would cause undue delay of these proceedings and it would increase the overall cost for the proceedings for necessary translation work, which is not justified under the circumstances to this case. To this point, the Complainant points out to knowledge of English in the Czech Republic and Latvia, and claims that the Complainant has no knowledge of Czech.
To this point, the Panel deems appropriate to change the language of the ADR proceedings when the choice of the language would be vexatious in order to make the enforcement of rights in the potential ADR proceedings difficult. On the other hand, the Panel does not consider as justified to change the language of the ADR proceedings when the Respondent has legitimate grounds for the choice of the respective language as the language of the registration agreement. Since the Respondent is located in Latvia, the Panel is not able to deduct any prima facie legitimate grounds for the choice of the Czech language. Although it is not excluded that a respondent based outside the Czech Republic could have a legitimate reason for the choice of the Czech language, in the present case, the Respondent did not reply to the Request. As a result, no legitimate grounds for the choice of the Czech language were claimed and proven by the Respondent.
Under these circumstances, it is to be presumed that the choice of the Czech language by the Respondent was vexatious in order to make the enforcement of rights in the potential ADR proceedings difficult. Given the above-mentioned, the Panel considers the Request founded and grants it.
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 and any future submission by the Parties (including the submission of a new Complaint) regarding the disputed domain name <travismathew.eu> shall be made in the language of the ADR Proceeding in accordance with paragraph A(3)(c) of the ADR Rules.
This Panel’s decision shall be final and not subject to appeal.
Date: September 22, 2021