WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING
Fruit of the Loom International Ltd. v. L.H. Oyen, Clothing Professionals
Case No. DEUL2021-0005
1. The Parties
The Complainant is Fruit of the Loom International Ltd., of Ireland, represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is L.H. Oyen, Clothing Professionals, of the Netherlands.
2. The Domain Name, Registry and Registrar
The disputed domain name is <jerzees.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 Realtime Register 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 August 24, 2021. On August 26, 2021, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On September 1, 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 September 10, 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 amended Request on September 13, 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 September 14, 2021. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was September 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2021.
The Center appointed Benoit Van Asbroeck as the sole panelist in this matter on October 6, 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 is a company incorporated in Ireland, which was established in 1851 as a cotton mill and textile producer. Today, it is active in the global underwear and casualwear business and according to the Complainant, it employs more than 32,000 people worldwide. Through its wholly owned subsidiary, Russel Brands LLC, the Complainant owns trademark registrations in different jurisdictions for the mark JERZEES, for a range of goods and services including underwear, undershirts, active wear, and socks. The Complainant submits that it has built up a huge amount of goodwill in the name JERZEES in conjunction with underwear, panties, bras, t-shirts, sweats, sweatshirts, socks, thermals and more.
The disputed domain name, <jerzees.eu> was registered by the Respondent on April 7, 2006. It currently redirects to “http://promogold.nl”. The body of this page shows brand logos of clothing companies such as Hakro, James & Nicholson, Promodoro and more. The header of this page contains a logo with the verbal elements “Clothing Professionals”, which corresponds to the Respondent’s name. The footer of this page contains the title “The Online Catalogue 2020”, as well as contact information indicating the name, city and telephone number of the Respondent. The contact information also indicates a street, street number and postcode different from that of the Respondent.
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
According to the Complainant, the language of the registration agreement for the disputed domain name is Dutch. The Complainant requests that the language of the ADR Proceeding be English. As set forth by Paragraph A(3)(b)(A)(iii) of the ADR Rules, the Complainant specifies the following circumstances to justify a change of language of this ADR Proceeding to English:
- The Complainant submits that it is unable to communicate in Dutch and that translation of the Complaint would unfairly disadvantage and burden it, as well as delay the proceedings and adjudication of this matter;
- The Complainant submits that this additional delay poses a continuing risk to itself and unsuspecting consumers seeking the Complainant or its products, since the Respondent has registered an identical or a confusingly similar domain name and is using it to redirect users to another website with links to the Complainant’s competitors;
- The website to which the disputed domain name redirects is entirely in English;
- The term JERZEES, which is the dominant portion of the disputed domain name, does not carry any specific meaning in the Dutch language;
- Given that the Respondent neither responded to the three cease and desist letters sent by the Complainant, nor requested that communications continue in Dutch, rejecting the request to change the language of the ADR Proceeding would further burden and disadvantage the Complainant, as well as contravene the spirit of the ADR Rules;
- The Complainant submits that considering the Respondent’s use of the disputed domain name and its decision to register a domain name that misappropriates the JERZEES mark and brand, it would unduly burden the Complainant to have to arrange and pay for translation, where the Respondent has demonstrated behavior that disrupts the Complainant’s business and has already required the Complainant to devote significant time and resources to addressing this instance of abuse.
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 wording of this provision makes it clear that preference is given to the language of the registration agreement as to the language of ADR Proceedings. However, in accordance with the ADR Rules, which are considered a variation of the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel recognizes that, under certain circumstances, the language of proceedings may be different from the language of the registration agreement for the disputed domain name. Such circumstances 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 disputed domain name;
(iv) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint;
(v) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement (e.g., LEGO Juris A/S v. Leonid Žitnikov, WIPO Case No. DEUL2021-0002; Skyscanner Limited v. Bolognesi Damiano, Aim S.r.l, WIPO Case No. DEUL2020-0001; Sphinx Information Technology Consulting and Software Project GmbH v. Sphinx IT SRL, WIPO Case No. DEUL2018-0001; see also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.5.1).
In accordance with Paragraph A(3)(b)(1)(iii), it is upon the Complainant to submit arguments and supporting evidence for its request to change the language of the proceedings.
For reviewing the evidence submitted by the Complainant, the Panel first notes that in the present case, the Complainant is a global underwear and casualwear business, which employs more than 32,000 people worldwide. Therefore, the Panel is not satisfied that, merely because the Complainant is headquartered in Ireland, it must be found that the Complainant has no knowledge of the Dutch language. Nevertheless, from a search which the Panel executed on its own behalf, according to language choices on the Complainant's official website at <fruitoftheloom.com>, the Complainant does not prima facie target Dutch-speaking consumers. Additionally, the Complainant’s products seem prima facie to be distributed in Dutch-speaking countries such as Belgium and the Netherlands through third-party suppliers. In turn, the Respondent is located in the Netherlands and it is undisputed that the language of the registration agreement is Dutch. These circumstances are in principle against the Complainant's request to change the language of this ADR proceeding away from Dutch to English (by analogy, see Carrefour v. The Company Manager Limited Domain / Maria Di Blasi, WIPO Case No. DEUL2017-0002).
However, the Respondent has not submitted any response or communication to the Center contradicting the Complainant’s request or claiming that English is a language beyond its comprehension. Additionally, the commercial name of the Respondent is constituted of the English terms “Clothing” and “Professionals”. Further, the Panel notes that the dominant portion of the disputed domain name reads “Jerzees”, which does not carry any specific meaning in Dutch. Finally, the disputed domain name redirects to another website entirely in English, which includes the name and partial contact details of the Respondent. These circumstances justify that the Respondent has command of the English language.
In light of the indicated circumstances, the Panel is satisfied that the Respondent has more than an adequate knowledge of the English language so that proceeding in English is fair and equal, in accordance with Paragraph B(7)(b) of the ADR Rules.
Having said so, requesting a translation of the Complaint would cause undue delay of these proceedings and be inequitable for both parties, contrary to the obligation to proceed with due expedition, in accordance with Paragraph B(7)(c) of the ADR Rules.
Therefore, having regard to the above circumstances, the Panel accepts in its sole discretion that the language of the ADR Proceeding will be English and therefore different from the language of the registration agreement for the disputed domain name.
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 <jerzees.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.
Benoit Van Asbroeck
Date: October 18, 2021