DECISION

 

Caterpillar Inc. v. Gaik Kazaryan

Claim Number: FA2403002089212

 

PARTIES

Complainant is Caterpillar Inc. ("Complainant"), represented by AJ Schumacher of Kelly IP, LLP, District of Columbia, USA. Respondent is Gaik Kazaryan ("Respondent"), Russia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <catparts.pro> ("Domain Name"), registered with Registrar of Domain Names REG.RU LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 19, 2024; Forum received payment on March 19, 2024.

 

On March 20, 2024, Registrar of Domain Names REG.RU LLC confirmed by e-mail to Forum that the <catparts.pro> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC 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 March 21, 2024, Forum served the Complaint and all Annexes, including a Russian and English Written Notice of the Complaint, setting a deadline of April 10, 2024 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@catparts.pro. Also on March 21, 2024, the Russian and English 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default in Russian and English.

 

On April 11, 2024, 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.

 

On April 12, 2024 the Panel issued a Panel Order under Rule 12 of the Rules.  The context of this Panel Order arose following its review of the Complaint which exhibited what was said to be an English-language version of the website at the Domain Name ("Respondent's Website"). The Panel wished clarification about whether this evidence was an English-language version of the Respondent's Website, maintained by Respondent (indicating an understanding of and facility to communicate in English) or a machine-translated version of Respondent's Russian-language website. On April 13, 2024 the Complainant responded to the order, confirming that it was the latter, namely that the screenshots of the Respondent's Website were machine translated from Russian via an Internet browser.

 

RELIEF SOUGHT

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 Russian.  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 Russian 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 Oct. 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 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 has provided no substantive evidence of Respondent's proficiency in English. Rather Complainant has asserted that the Respondent is capable of understanding English because a) the Domain Name consists of two English words ("cats" and "pro"); b) the Respondent's Website contains the Complainant's English-language trademark; c) The Respondent has an e-mail address from the domain "inbox.ru" and d) the Respondent's Website provides parts for Complainant's products and other English-language competing brands.  None of this evidence is persuasive.  Awareness of the Complainant's trademark does not demonstrate competency in a language. It is perfectly possible, with the aid of a dictionary, to identify words that exist in another language without having proficiency in that language.  Nor does having an e-mail address ending with "inbox.ru" or providing products for "other English-language, competing brands" (whatever they may be) illustrate any level of fluency.  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 has not filed a Response, but has responded, in Russian to the Written Notice of the Filing of the Complaint, which was sent to it in both the English and Russian languages which further does not indicate a proficiency 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 Russian language requirement in the available Registration Agreement and result in substantial prejudice towards Respondent. Therefore, the language of the proceedings should continue in Russian.

 

DECISION

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.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: April 14, 2024