Westmore · UDRP DecisionPetrobras.today
The Panel ordered transfer of <petrobras.today> based on the Respondent’s repeated, unequivocal consent to transfer. Because the parties did not complete a formal settlement, the Panel treated the Respondent’s unilateral consent as a sufficient basis for the requested remedy and did not consider the three elements of paragraph 4(a) of the UDRP. The Panel also determined that English would be the language of the proceeding despite the Russian-language registration agreement.
The timeline behind petrobras.today
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This decision illustrates a procedural route to transfer where a respondent gives genuine, unilateral, and unambiguous consent but the parties do not complete a formal settlement. It is also notable because the Panel resolved a contested language issue before ordering transfer and expressly avoided adjudicating all three substantive UDRP elements.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Petroleo Brasileiro S.A - Petrobras v. Sergej Storozhuk Case No. D2015-1291 1. The Parties The Complainant is Petroleo Brasileiro S.A - Petrobras of Rio de Janeiro, Brazil, represented by Ouro Preto Advogados, Brazil. The Respondent is Sergej Storozhuk of Dnepropetrovsk, Ukraine. 2. The Domain Name and Registrar The disputed domain name <petrobras.today> (the “Domain Name”) is registered with Regtime Ltd. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2015. On July 27, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 29, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. According to information the Center received from the Registrar, the language of the Registration Agreement for the Domain Name is Russian. On July 29, 2015, the Center communicated to the Parties the language of the proceeding disclosed by the Registrar in both English and Russian. On July 30, 2015, the Complainant requested the language of the proceeding to be English. The Respondent requested Ukrainian or Russian be to the language of the proceeding. At the request of the Complainant, the proceeding was suspended on July 31, 2015 and thereafter reinstituted on September 24, 2015. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in English and Russian of the Complaint, and the proceedings commenced on October 6, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2015. Apart from the numerous emails received from the Respondent no official Response was filed with the Center. By request of the Complainant on October 15, 2015, the proceeding was suspended for the second time until November 14, 2015 to allow time for settlement negotiations with the Respondent. On November 13, 2015, the Complainant requested the suspension to be extended. On November 16, 2015, the Center extended the suspension until November 26, 2015. On November 26, 2015, the proceeding was reinstituted at the Complainant’s request. The Center appointed Olga Zalomiy as the sole panelist in this matter on December 4, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is a Brazilian energy company, which owns several trademark registrations in the PETROBRAS mark dating back to 1974. The Respondent registered the Domain Name on April 15, 2015. Following receipt of the Complaint, the Respondent unequivocally consented to transfer the Domain Name to the Complainant. On July 29, 2015, the Respondent sent an email requesting the proceeding to be conducted either in Ukrainian, the official language of Ukraine, or Russian, which he can understand. In addition, he stated that he did not need the Domain Name and that he offered the Complainant to take it back upon reimbursement of the Respondent’s registration expenses. Between July 29, 2015 and October 9, 2015, the Respondent submitted several emails stating that he did not need the Domain Name and he did not mind transferring the Domain Name to the Complainant. As described further below, on October 9, 2015, the Respondent submitted an informal communication to the Center copying the Complainant stating that he did not mind cancellation of his registration of the Domain Name and, that in case the cancellation was impossible, he did not object to transfer of the Domain Name to the Complainant. As stated above, in light of this communication, the proceeding was suspended, but the parties were not able to reach a settlement. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is identical or confusingly similar to its PETROBRAS trademark. The Complainant asserts that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant claims that the Respondent registered and is using the Domain Name in bad faith. The Complainant requests that the Domain Name be transferred to the Complainant. B. Respondent The Respondent did not submit any formal response. On October 9, 2015, the Respondent submitted the following email in the Russian language: “Case Number D2015-1291 petrobras.today This is to notify you that the Domain Name was registered with Ukrnames company (‘www.ukrnames.com’). At the time of the registration, the said company did not notify [me] about existence of registered [trademark] rights of the Petrobras company in Ukraine. After notification about my infringement of Petrobras Brasilia company’s rights, I contacted Ukrnames on several occasions with a request to cancel registration of the Domain Name, which were denied. In addition, I notified Petrobras Brasilia on several occasions that I do not mind transferring the Domain Name to them [sic] voluntarily. Instead, representatives of the company demanded that contacted a Russian company and filled in their questionnaire and submitted a copy of [my] passport for transfer of the Domain Name. As everybody knows, there is a conflict between Ukraine and the Russian Federation. If I contact them [the Russian company], then it is possible it will result in negative consequences for me as a reservist citizen of Ukraine. This is to let you know that I do not mind against cancellation of registration of the Domain Name. (in case of impossibility, [I] do not object to transfer of the Domain Name [to the Complainant]. The dispute was created by the Complainant, because their [sic] representative is incapable to resolve the issue voluntarily. The Domain [Name] has not been used and was purchased for sale at ‘sedo.com portal’. I did not know about violation of the company’s rights. Respectfully, Sergej Storozhuk.” 6. Discussion and Findings 6.1. Language of the proceeding Paragraph 11(a) of the Rules provides that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” Because the language of the Registration Agreement for the Domain Name is Russian, the default language of the administrative proceeding would have been Russian. The Complainant requested that the language of the proceeding be English because translating the Complaint into Russian would require the Complainant to incur considerable expenses, and because the Respondent can understand English. The Respondent objected to the Complainant’s request and requested that the proceeding conducted either in Ukrainian or in Russian. The Panel, however, determines that English should be the language of the administrative proceeding. It is established practice to make a decision regarding the language of the proceeding to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding. See, Solvay S.A. v. Hyun-Jun Shin , WIPO Case No. D2006-0593 . In this case, the Complainant, which is not proficient in either Ukrainian or Russian, will have to incur considerable expense if it is forced to translate the Complaint into Russian or Ukrainian. The Respondent, who agreed to transfer the Domain Name to the Complainant, indicated that he can understand English despite his limited proficiency. Under the circumstances, to require the Complainant to translate the Complaint into Russian or Ukrainian will lead to undue and unnecessary burden and delay resolution of the dispute. The Panel, therefore, determines English to be the proper language of this proceeding. 6.2. General discussion It is well-established that a respondent’s unilateral and unambiguous consent to transfer a domain name at issue to the complainant provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements. See , e,g., Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207 (to ensure that the proceeding takes place with due expedition, the panel granted relief requested by complainant where respondent consented to the requested relief, but the parties have not agreed to a formal settlement); WIPO Case No. D2005-1132 ; DB Corp. Ltd v. Rashtramitra Dnyaneshwar Thombre / Whois Agent LiquidNet US LLC, WIPO Case No. D2011-1352 (where panel agreed with the reasoning in the Williams-Sonoma case); The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132 ( the panel ruled that a genuine unilateral consent to transfer by the respondent provided a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements ) . Here, in his numerous emails the Respondent unequivocally agreed to transfer the Domain Name to the Complainant. The Parties, however, did not enter into a formal settlement agreement. Therefore, the Panel orders the Domain Name to be transferred to the Complainant. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <petrobras.today> be transferred to the Complainant. Olga Zalomiy Sole Panelist Date: December 14, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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