VNG Corporation v. Do Minh Thong

Claim Number: FA2112001978275



Complainant is VNG Corporation (“Complainant”), Vietnam.  Respondent is Do Minh Thong (“Respondent”), Vietnam.



The domain name at issue is <> (“Domain Name”), registered with Nhan Hoa Software Company 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.


Nicholas J.T. Smith as Panelist.



Complainant submitted a Complaint to the Forum electronically on December 24, 2021; the Forum received payment on December 24, 2021.


On February 6, 2022, Nhan Hoa Software Company Ltd. confirmed by e-mail to the Forum that the <> domain name is registered with Nhan Hoa Software Company Ltd. and that Respondent is the current registrant of the name.  Nhan Hoa Software Company Ltd. has verified that Respondent is bound by the Nhan Hoa Software Company 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 February 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2022 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  Also on February 8, 2022, 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 March 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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.



The language of the Registration Agreement in this case is Vietnamese.  The Complaint has been provided in English and Complainant has requested that the language of the proceeding be English. 


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.  Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant.  See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).  Further, the Panel may weigh the relative time and expense in enforcing the Vietnamese language agreement, which would result in prejudice toward either party.  See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”) and, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where “the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English”)


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 Vietnamese, both parties are located in Vietnam, the Complainant’s business operates primarily in Vietnam and the Domain Name is inactive. 


Complainant has provided insufficient evidence of Respondent’s proficiency in English.  The Domain Name is inactive and there is no evidence of any English-language communication between Complainant and Respondent.  Rather Complainant has asserted that the Respondent can understand English because the Domain Name contains the word “zalo’” and because the Respondent’s Facebook page displays in English.  These assertions do not amount to evidence of a level of proficiency sufficient to enable a party to participate in a contested administrative proceeding in any meaningful or effective way.  Complainant’s ZALO messaging service is likely used and recognized by many individuals in Vietnam without any proficiency in English.  Furthermore the Panel is not satisfied that a) the Facebook page purported to be Respondent’s Facebook page is necessarily the Respondent’s page (there may be multiple individuals with the same name as Respondent on Facebook) and b) that the Respondent’s Facebook page indicates any particular proficiency in English.  Given that all user content uploaded to the particular Facebook page is in Vietnamese, the Panel is not prepared to infer that the fact that the page displays in English is evidence that Respondent is proficient in the language.  


Finally the Panel does not accept the argument that the proceeding should continue in English due to the limited number of Vietnamese-speaking UDRP panellists; to order the proceeding continue in English for that reason would simply be unfair.


For the reasons set forth above, the Panel finds and determines that Complainant has failed to support its request for this proceeding to continue in English.



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 Vietnamese and proceeding from this point in Vietnamese, 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 Vietnamese language, or provide persuasive, competent evidence that Respondent is proficient in English.



Nicholas J.T. Smith, Panelist

Dated:  March 9, 2022



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