0.15 Language of Proceeding
UDRP Rule 11 specifically states that unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. Under Rule 11 (b) the Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding.
A Panel should not depart from the general requirement that the proceeding be in the language of the registration agreement, absent exceptional circumstances. Panels should take into account that a Respondent should be assumed to have purposefully selected its registrar because of the language of its registration agreement and the right to therefore have the UDRP proceedings conducted in that language.
Panels should also be careful to ensure that the language of the registration agreement is conclusively determined as sometimes a Complainant will furnish a registration agreement that has been translated by the registrar for a particular market rather than in the language of the registrant’s registration agreement.
Where a Complainant has requested a language other than the language of the registration agreement and has not provided exceptional circumstances as to why it should be permitted, a Panel should generally insist upon the Complainant filing its Complaint in the proper language. This is not terribly onerous for a Complainant since practically speaking, Complainants can file a machine translated version even if it is not as readable if they want and still satisfy the requirement.
Exceptional circumstances must truly be exceptional. Panels sometimes incorrectly consider unexceptional factors to be exceptional. For example, convenience to a Complainant is not exceptional nor is the Complainant’s lack of facility in the required language. Just because the disputed domain name or the associated website is in a particular language also does not generally constitute exceptional circumstances. Panels must be cognizant of the fact that ICANN drafted Rule 11 in full contemplation of such ordinary circumstances where the parties are in different jurisdictions and speak different languages or where a Complainant may prefer to proceed in its own language other than the language of the registration agreement yet nonetheless instituted the Rule as a uniform and consistent default that should be applied absent exceptional circumstances.
Fairness requires that a Respondent fully understands the allegations made against it. Knowing enough English to register an English domain name, for instance, does not prove that the Respondent has sufficient capacity to understand and to respond to Complaint written in sophisticated legal English. Ultimately the objective of the Rule is to afford the Respondent an opportunity to defend in its own language. It is also therefore unfair for a party to rely upon documents that are not in the language of the proceeding where the other party does not speak that language, even if the Panel may.
The underlying principle is that a Respondent is not disadvantaged in due to the Complainant’s use of an unfamiliar language. Where a Panel determines that the Complainant has failed to adequately support its allegations based on an insufficiency of evidence presented in the Complaint itself such that the Complaint must fail regardless of whether or not the Respondent presents a Response, then in the interests of efficiency, the Complainant need not be put to the trouble of translating its Complaint and attached documents, and the Respondent is not disadvantaged, as the Panel has determined the outcome in the Respondent’s favor based on the Complaint alone.
In some cases, the totality of circumstances may demonstrate that a language change request is justified (e.g. previous decisions against the same respondent, content of the website, if any, prior communication between the parties, locations of the parties, etc.). Panels may also consider accepting submissions from both parties to the proceeding in different languages or not requesting translation of any annexes to the language of the proceeding as provided in Rule 11 (b) if a Panelist is fluent in both languages and when it is fair to both parties.
Additional Information
Relevant Decisions
Inera AB v. Oskar Zajączkowski, WIPO D2024-0773, <inera.cloud>, Denied
The language of the Registration Agreement for the disputed domain name is Polish. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement…
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the page 4 proposed language, time and costs (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1). Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English…
Given the paucity of evidence of trademark targeting and the fact that the burden of proof rests with Complainant, this Complaint must fail.
Patronato de la Alhambra y el Generalife v. Domain Admin, Indefinite Ltd, WIPO D2024-0182, <alhambra.com>, 3-member, Denied
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the
language of the proceeding shall be English. The Panel identifies no special circumstances from the
Complainant’s submission that would reasonably indicate that any departure from the language of the
Registration Agreement should be made. The Panel consists of an English/Spanish speaker and two English speakers who do not speak Spanish. The Complaint, while apparently machine-translated, was supplied by the Complainant upon the Center’s request that it file a version in English. In light of its decision above, the Panel considers it appropriate to work from the English version of the Complaint wherever possible, noting that the Respondent has sought to answer this version in the Response, which is also in English.
Caterpillar Inc. v. Gaik Kazaryan, Forum FA2403002089212, <catparts.pro>, Denied Without Prejudice
Convenience and expense are important factors in determining the language of a UDRP proceeding. Of paramount importance, however, is fundamental fairness. Requiring a party to conduct a UDRP proceeding in a language in which it is not proficient enough to enable it to do so, to understand the claims and defences asserted by the other party and to assert its own claims and defences, is simply not fair. In this case, the registration agreement is in Russian, the Respondent’s Website is in Russian, the Respondent is based in Russia, and the Respondent’s sole communication with Forum was in Russian…
Complainant’s request for these proceedings to continue in English is DENIED. Under the circumstances present in this case, the Panel concludes that ordering the Complaint to be translated into Russian and proceeding from this point in Russian, in which the Panel is not proficient, would be neither efficient nor productive. Accordingly, the Panel orders that the Complaint be dismissed, without prejudice. Complainant may if it so desires file a new Complaint and proceed in the Russian language, or provide persuasive evidence that Respondent is proficient in English.
Rugvista AB v. Yavuz Özdemir, Diva Teppich Center, WIPO D2023-2803, <carpetvista.shopping et. al.>, Transfer
By letter to the Center of July 6, 2023, the Respondent insisted on German as the language of proceedings, pointing out that the Registration Agreement was in German and that the Respondent was a German company… Taking into account the circumstances of this case, notably the fact that the Complainant has provided evidence that the Parties had communicated in English prior to the initiation of the UDRP proceeding and that the website under the disputed domain name has also an English version, the Panel does not consider it prejudicial to the Respondent if English were adopted as the language of the proceeding and notes that the Respondent is familiar with English. The Panel finds that substantial additional expense and delay would likely be incurred if the Complaint and annexes thereto had to be translated into German. In view of the Policy’s aim of facilitating a time and cost-efficient procedure for the resolution of domain name disputes, the Panel finds it appropriate to exercise its discretion according to paragraph 11(a) of the Rules and allow the proceeding to be conducted in English. The Panel accepts the Complaint as filed in English and the Respondent’s email communications as submitted in German and English and will proceed in its discretion to render its decision in English.
BFD, Inc. and Barefoot Dreams, Inc. v. kanggeng sheng, Forum FA2205001997581, <bfd.com>, 3-member, Denied
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese by default.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. ..
In the present case, Respondent’s correspondence with the Forum, its Response, and its Additional Submission show that it is fluent in English. The Response is in Chinese. Complainant’s rebuttal of the Response in its Additional Submission shows that it is fluent in Chinese. That is, both parties are fluent in both languages and are able to respond to each other’s submissions. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition and cost-effectiveness, are best satisfied by delivering the decision in English without requesting translation of the case materials from the parties.
PaySend Group Limited v. Quan Zhongjun, CAC-UDRP-104796 (2022), <paysedn.com>, et. al., Transfer
In this particular instance, the Complainant tried to request change of languages of proceedings in light of Chinese language Registration Agreement by showing that 1) The translation of the Complaint would unfairly disadvantage and burden the Complainant and delay the proceedings and adjudication of this matter; 2) all 5 disputed domain names were initially registered with one single registrar – “Cosmotown, Inc.” and the registration agreement for all 5 domains was in English; 3) in many previous UDRP decisions against the same Respondent UDRP panels accepted the English language as the language of the proceeding. In light of the scenarios and equity, the Panel is of the view that conducting the proceeding in English is unlikely to heavily burden the Respondent, and it is likely that the Respondent can understand the English language based on a preponderance of evidence test.
Without further objection from the Respondent on the issue, the Panel will proceed to issue the decision in English.
Intesa Sanpaolo S.p.A. v. Mario Lobascio, CAC-UDRP-104384 (2022), <INTESANTFROD.COM>, Denied
(i) There is no evidence showing that the Respondent can understand the language of the Complaint. The Complaint was drafted in English; (ii) The disputed domain name is not identifiably in any language; (iii) there is no website associated with the disputed domain name and therefore there is no content available; (iv) the Complainant has cited no past cases involving the Respondent in its submissions; (v) there is no evidence of prior correspondence between the Parties from which the Respondent’s working language(s) could be inferred…
Dagi Giyim San. Ve tic.a. ş. v. PrivacyDotLink Customer 4594967 / Domain Admin, WIPO D2022-2730, <dagi.com>, 3-member, Denied, RDNH Taken as a whole these reasons seem to the Panel to involve the Complainant assuming that because the
Complainant is Turkish and its trademarks are (it says) well known in Turkey, that means the proceedings can take place in Turkish. That is not what the Rules provide…In all the circumstances the Panel considers that there is no proper basis for departing from paragraph 11 of the Rules, as to do so would manifestly disadvantage the Respondent who does not speak Turkish. Accordingly the Panel concludes that these proceedings should be in English. The Panel has treated the version of the Complaint translated into English as the Complaint. Insofar as various other documents filed by the Complainant are in Turkish the Panel has not found it necessary to require further translations given one member of the Panel is a native Turkish speaker.
T.C. Pharmaceutical Industries Co., Ltd v. junzhi wang, beijing hongniuyinliao xiaoshouyouxiangongsi, WIPO D2021-1297, <hongniu.cc>, et., 3-member, Transfer with dissenting opinion
The Panel observes that both the Complaint and Response were filed in English, although some annexes are in Chinese. It is clear that both Parties understand English and Chinese, as does the Panel. Therefore, the Panel considers that requiring either Party to translate any document that it has not already translated would create an undue burden and delay whereas accepting all submissions in their original language without translation, where none was provided, does not create unfairness to either Party.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English but that it will accept annexes as filed in English or Chinese with or without translation.
Digest Commentary
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Digest Vol. 4.9 <barnessa.com>, Transfer
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Digest Vol. 3.20 <ruckusnow.com>, Dismissed without prejudice