Westmore · UDRP DecisionLeica.store
The Panel ordered transfer of <leica.store> based on the Respondent's genuine unilateral consent to transfer. It did not consider the three elements under paragraph 4(a) of the UDRP and expressly made no findings adverse to the Respondent. The Panel also determined that English would be the language of the proceeding despite the Registration Agreement being in Chinese.
The timeline behind leica.store
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates a consent-transfer disposition in which the Panel considered a respondent's repeated unilateral consent sufficient to order transfer without adjudicating confusing similarity, rights or legitimate interests, or bad faith. It also shows that language can remain a live procedural issue even when the respondent consents to transfer.
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 Leica Microsystems IR GmbH v. Tong Chuang Case No. D2016-2316 1. The Parties The Complainant is Leica Microsystems IR GmbH of Wetzlar, Germany, represented by Baker & McKenzie, Germany. The Respondent is Tong Chuang of Xi’an, Shaanxi Province, China, self-represented. 2. The Domain Name and Registrar The disputed domain name <leica.store> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”). 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 14, 2016. On November 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 15, 2016, 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. In response to a notification by the Center regarding annexes to the Complaint, the Complainant submitted a revised Annex 11 to the Complaint on November 16, 2016. On November 16, 2016, the Center sent an email communication to the Parties in Chinese and English regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. On November 17, 2016, an email in Chinese was received from the Respondent. The Respondent indicated that “leica” means “wipe tears” in Chinese, and there is also a place called “雷擦” (the pinyin is “leica”) in Zunyi city, Guizhou Province, China. Therefore, the Respondent requested to dismiss the Complaint. However, the Respondent did not comment on the language of the proceeding at this juncture. 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 Chinese and English of the Complaint, and the proceeding commenced on November 23, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 13, 2016. Between November 23 and November 24, 2016, several emails in Chinese and English were received from the Respondent indicating: a) his English was not good, and requesting Chinese as the language of the proceeding; b) he was tired and he would like to transfer the disputed domain name to the Complainant; and c) he spent a lot of money on the disputed domain name, and he would like to have compensation for that expense. Upon the Complainant’s request, on November 24, 2016, the proceeding was suspended until December 24, 2016 for possible settlement between the Parties. On December 22, 2016, the Complainant requested re-instatement of the proceeding, and included the Parties’ email exchanges during the settlement process to show that the Respondent was familiar with English. The proceeding was reinstated on December 22, 2016, and the new Response due date was January 10, 2017. Between December 22 and December 23, 2016, several emails in Chinese were received from the Respondent requesting the Center to transfer the disputed domain name to the Complainant. On December 23, 2016, the Complainant indicated that it did not wish to explore further settlement with the Respondent any more. On January 11, 2017, the Center informed the Parties that it would proceed with panel appointment. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 20, 2017. 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. Discussion and Findings 4.1 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important 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. Amongst other reasons in support of its language request, the Complainant submits that the Respondent is conversant in English language, as evidenced by the English language settlement communications between the Parties. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. The Panel considers that the English language emails drafted by the Respondent and sent to the Complainant during the settlement negotiations demonstrate that the Respondent is conversant and proficient in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. The Panel considers the fact the Respondent has consented to the transfer of the disputed domain name is a further relevant consideration in support of English as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 4.2 Consent to Transfer The Respondent has confirmed in several email communications with the Center that he consents to the transfer of the disputed domain name to the Complainant. “[A] genuine unilateral consent to transfer by the Respondent provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements.” (See The Cartoon Network LP, LLLP v. Mike Morgan , WIPO Case No. D2005-1132 . See also paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition). The Panel agrees with this approach. 5. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders, without making any findings adverse to the Respondent, that the disputed domain name <leica.store> be transferred to the Complainant. Sebastian M. W. Hughes Sole Panelist Date: February 3, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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