Infineon Technologies AG v. liu wei jie / xuzhongm / yinfineom
Claim Number: FA1909001860700
Complainant is Infineon Technologies AG (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California, USA. Respondent is liu wei jie / xuzhongm / yinfineom (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue herein (the Domain Names) are <yinfineom.com>, registered with Xin Net Technology Corporation, and <infineom.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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on September 4, 2019; the Forum received payment on September 4, 2019.
On September 10, 2019, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <yinfineom.com> Domain Name is registered with it, and that Respondent is the current registrant of that name. On September 6, 2019, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <infineom.com> Domain Name is registered with it, and that Respondent is the current registrant of that name. Both registrars have verified that Respondent is bound by their respective registration agreements 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 September 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of October 2, 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@infineom.com and postmaster@yinfineom.com. Also on September 12, 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 3, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: Language of the Proceedings
The registration agreements for both Domain Names are written in Chinese. Rule 11(a) provides that the language of the proceedings is the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the case. Complainant requests that these proceedings be conducted in English, arguing that Respondent is at least familiar enough with the English language to manipulate Complainant’s mark into two typosquatted versions of that mark, and that, since Complainant does not speak Chinese, requiring these proceedings to be conducted in that language would impose delay and unnecessary expense upon Complainant. In addition to Rule 11(a), in determining the language of UDRP proceedings, panels have considered Rules 10(b) (requiring panels to ensure the parties are treated with equality and given fair opportunity to present their cases) and 10(c) (authorizing panels to extend time periods fixed by the Rules). Factors which previous panels have seen as important include evidence showing that the respondent can understand the language of the complaint, the language of the domain name, the content on any web pages resolving from the domain name, prior correspondence between the parties, and potential unfairness or unwarranted delay in ordering the complainant to translate the complaint. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, at ¶4.5.1, 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), 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.”).
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 defenses asserted by the other party and to assert its own claims and defenses, is simply not fair. In this case, the registration agreements are in Chinese, and except for good cause that should be the language of this proceeding. Rule 11(a). Complainant’s only evidence that Respondent is sufficiently proficient in English to proceed in English is that it was able to create two confusingly similar but different versions of Complainant’s mark by subtle changes in the spelling thereof. The text in the websites resolving from both Domain Names (Complainant Exhibit C) is written almost exclusively in Chinese, the only exceptions being a very few well-known brand names, e.g., Mitsubishi, SanRex, Fujitsu, and a few Arabic numerals. There is no other evidence of proficiency in English. The ability to manipulate a single word into slightly different versions is not 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, 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 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.
Charles A. Kuechenmeister, Panelist
Dated: October 4, 2019
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