Radio Flyer Inc. v. liupei
Claim Number: FA2011001919896
Complainant is Radio Flyer Inc. (“Complainant”), represented by Joshua S. Frick of Barnes & Thornburg LLP, Illinois, USA. Respondent is liupei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radioflyertoys.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 8, 2020; the Forum received payment on November 8, 2020. The Complainant was received in English.
On November 10, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <radioflyertoys.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 November 16, 2020, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of December 7, 2020 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@radioflyertoys.com. Also on November 16, 2020, the Chinese and English language 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 December 9, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC Panelist.
On December 10, 2020 the Panel issued a Procedural Order No. 1 requesting additional information from Complainant on or before December 14, 2020 and allowing Respondent time to make submissions thereon within four days of receipt of said additional information. Complainant timely furnished said additional information but no submissions were received from Respondent.
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 disputed domain name be transferred from Respondent to Complainant.
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that Complainant has failed to produce sufficient evidence demonstrating that Respondent has the capacity to understand the English language, which, if adopted as the language of the proceedings, would fail to comport with the Chinese language requirement in the available Registration Agreement and result in substantial prejudice towards Respondent.
A. Complainant
The Complaint requests transfer of the disputed domain name. The Complaint and procedure to date has been in the English language.
Complainant submits inter alia that Respondent has the capacity to understand the proceedings in the English language and so the Panel should find that the Complaint may proceed in English rather than in the language of the Registration Agreement.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submissions
Complainant timely provided additional submissions in response to the Panel’s request for translation of certain exhibits into the English language. The additional information was a certified translation of the WhoIs and the document annexed to the Complaint, alleged to be a screenshot of the website to which the disputed domain name resolved.
Having considered the Complaint and the additional submissions of Complainant, the Panel considers that it would be inappropriate to make any findings of fact, save that, having considered all documents on the record, this Panel is not satisfied that, Respondent has the capacity to understand proceedings in the English language.
Complainant has asserted that Respondent has this capacity and thus this proceeding should be conducted in the English language, rather than the language of the Registration Agreement which is Chinese. As there is no evidence on the record to support Complainant’s assertion this Panel dismisses the Complainant without prejudice to Complainant’s right to file a Complaint in the language of the Registration Agreement.
The Panel dismisses the Complaint without prejudice to Complainant’s right to file a Complaint in the language of the Registration Agreement.
James Bridgeman SC
Panelist
Dated: December 18, 2020
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