WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION RELATED TO THE REQUEST TO CHANGE THE LANGUAGE OF THE ADR PROCEEDING
Vitalen Otomotiv A.S v. Faith Ünsal
Case No. DEUL2021-0006
1. The Parties
The Complainant is Vitalen Otomotiv A.S, Turkey, represented by Juris Attorney Partnership, Turkey.
The Respondent is Faith Ünsal, of Sweden.
2. The Domain Name, Registry and Registrar
The disputed domain name is <pedalcommander.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 team.blue Denmark A/S.
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 18, 2021. On October 19, 2021, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On October 20, 2021, 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.
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 October 29, 2021. In accordance with the ADR Rules, Paragraph A(3)(b)(4), the due date for Response was November 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 12, 2021.
The Center appointed Knud Wallberg as the sole panelist in this matter on November 17, 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 located in Turkey, and claims to have rights in the trademark PEDAL COMMANDER, which inter alia is registered as trademark with effects in the European Union for goods in class 12.
The Respondent is located in Sweden but, in accordance with the annexes to the Complaint, owns a company in Denmark.
The disputed domain name was registered on May 19, 2020, and currently does not resolve to an active website. It results from the EURid registrar verification that the language of the registration agreement is Danish.
5. Parties’ Contentions
In accordance with Paragraph A(3)(b)(1)(iii) of the ADR Rules, the Complainant ascertains that the Respondent has working knowledge in English. In support of this allegation, the Complainant has provided a copy of the now no longer valid Distributorship Agreement between the parties, which was drafted in English. The Complainant, for its part, claims that requiring it to translate its Complaint into Danish would unfairly disadvantage and create a financial burden on the Complainant, and will delay the proceedings and adjudication of this matter.
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 Registry in this case has confirmed that the language of the registration agreement is Danish. 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 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 the 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 3.0”), section 4.5.1.).
The Complainant has argued different circumstances supporting English as the language of the ADR proceeding, and that if it was required to file its complaint in Danish this would unfairly disadvantage and create a financial burden on the Complainant just as it would delay the proceedings and adjudication of the matter. The Panel accepts these arguments and therefore finds that the Complainant has justified its reasons for requesting that the language be changed from Danish to English.
As far as the Respondent is concerned, the Panel finds that there can be no doubt that the Respondent is familiar with the English language. As evidenced by the Complainant, the Respondent, in his capacity as owner and/or manager of the Danish company FTHSM Holding, signed a Distributorship Agreement, which was drafted in English. In addition, the Panel notes from visiting the Web Archive that the website under the disputed domain name<pedalcommander.eu> previously contained text written in English. The Panel therefore finds that the change of language would not treat the Respondent unfairly.
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 <pedalcommander.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: November 29, 2021