Arris Enterprises LLC v. luo wen qiang
Claim Number: FA2304002041165
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is luo wen qiang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckusnow.com> (“Domain Name”), registered with Gname 006 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on April 21, 2023; Forum received payment on April 21, 2023.
On April 24, 2023, Gname 006 Inc confirmed by e-mail to Forum that the <ruckusnow.com> domain name is registered with Gname 006 Inc and that Respondent is the current registrant of the name. Gname 006 Inc has verified that Respondent is bound by the Gname 006 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 April 25, 2023, Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 15, 2023 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@ruckusnow.com. Also on April 25, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The language of the Registration Agreement in this case is Chinese. 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 Chinese 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 Zappos.com, 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 Chinese, the website to which the Domain Name resolves to appears to be inactive and the Respondent is based in China.
Complainant has provided no evidence of Respondent’s proficiency in English. Rather Complainant has asserted that the Respondent is capable of understanding English because the Domain Name consists of two English words (“rukus” and “now”) and Respondent had to have sufficient familiarity with English to select those particular characters for registration. It is perfectly possible, with the aid of a dictionary, to identify words that exist in another language without having proficiency in that language. Complainant’s 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. Respondent failed to respond to the Written Notice of the Filing of the Complaint herein, which was sent to it in both the English and Chinese languages, but in and of itself this is not sufficient cause to order the proceeding to continue in English.
For the reasons set forth above, 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. Therefore, the language of the proceedings should continue in Chinese.
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 Chinese and proceeding from this point in Chinese, 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 Chinese language, or provide persuasive, competent evidence that Respondent is proficient in English.
Nicholas J.T. Smith, Panelist
Dated: May 18, 2023
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