JUUL Labs, Inc. v. David Silva / shop
Claim Number: FA1910001865388
Complainant is JUUL Labs, Inc. (“Complainant”), represented by Chelsea E. Carbone of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is David Silva / shop (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coque-juul.com>, registered with PlanetHoster Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 3, 2019; the Forum received payment on October 3, 2019.
On October 9, 2019, PlanetHoster Inc. confirmed by e-mail to the Forum that the <coque-juul.com> domain name is registered with PlanetHoster Inc. and that Respondent is the current registrant of the name. PlanetHoster Inc. has verified that Respondent is bound by the PlanetHoster Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 10, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@coque-juul.com. Also on October 10, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 31, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in JUUL and alleges that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Rule 15(a) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Further, Rule 11 controls the language of the proceedings and, in particular, Rule 11(a) provides that:
(a) 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.
Panel notes that the Registration Agreement is in French. There is no evidence of any agreement by the Parties that another language might apply and so the language of these proceedings is French.
That said, the Panel retains a general discretion to allow the proceedings to continue in another language and in that respect Complainant requests that:
… these proceedings be conducted in English, given that Complainant is a U.S. Company. Requiring the proceedings to be conducted in French, the language of the content on the website found at the disputed domain name <coque-juul.com>, would unduly burden the Complainant, which is located in the U.S. Complainant does not speak French and requiring Complainant to translate the complaint into French would be costly for Complainant and delay the proceedings unnecessarily. … Further, Respondent appears to understand English given that the site includes a copyright notice in English at the bottom of each page and some of the product descriptions are written in English.
The Panel understands the burden of translation but must balance that against considerations of fairness to both parties. The objection is that the disputed domain name resolves to a website “displaying unauthorized JUUL compatible products”. It is not entirely plain what that means. The meaning is not made clearer by the later claim that “[v]isitors to the site seeking JUUL products are being wrongly led to believe that Respondent is an authorized seller of JUUL compatible products.” Moreover, how internet users might be so misled is no more obvious from the statement that the disputed domain name “wholly incorporates the mark and adds the French term ‘coque’ which translates into ‘shell’ in English.
To a French speaker the word “coque” would, in the context of Complainant’s goods sold under the trademark, namely nicotine vaporizers, assume a descriptive reference to a case or housing for such products. There is no evidence that Complainant itself makes and sells such “compatible” goods under the trademark and, given the opportunity, Respondent may well present argument that it has a legitimate interest in the domain name. In that regard there is no evidence that Respondent is competent in English. The copyright notice can be given little, if any, weight and the claim that “some of the product descriptions (on the resolving website) are written in English” is nothing more than a reference to the fact that some of the goods sold at the site bear English language cartoon icons such as “Spider Man” and “Captain America”, of which there is no evidence or licensed use or not.
In short, the Panel finds that Complainant has not provided evidence that Respondent has sufficient proficiency in English to understand the Complaint. Further, that the circumstances should allow Respondent to have the opportunity to make a Response based on a complete understanding of the assertions made by Complainant.
For these reasons, the Panel finds that the Complaint should be recommenced in the French language. Until the matter might be recommenced and determined it is Ordered that the <coque-juul.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: November 11, 2019
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