When you file a UDRP, the domain’s registrar matters. In the case of LordAdTaylor.com the UDRP was filed by Lord & Taylor IP LLC, America’s first and oldest department store.
The Respondent uses DNSPod, Inc. as their registrar, which is based in China, as is the Respondent. Apparently, not many Chinese can understand or respond to a legal document in English.
The Forum (NAF) panelist took it upon themselves to send back the filing to the Complainant, with two options:
1. Translate the Complaint and Table of Contents into Chinese, or
2. Modify the complaint to explain why Respondent is capable of understanding English and therefore, the proceedings should be conducted in English.
Complainant elected to modify the Complaint and an Amended Complaint was filed. In the Amended Complaint it submits that the disputed domain name “is a misspelling of English words, ‘Lord and Taylor’, and the [disputed domain name] redirects to Complainant’s website, which is also in English. Finally, more than one past panel has found that Respondent has previously been determined to be proficient in English.”
The Panelist said that “Zhang” is reportedly the third most common family name in China and one of the most common family names in the world, whilst the given name “Wei” is also exceedingly common in China. There is no reason for the Panel to find it more likely than not that the registrant of the disputed domain name is the respondent of the earlier cases.
Note: UDRPsearch returns approximately 28 cases for “Zhang Wei.”
These technical issues led to the UDRP filed against the domain LordAdTaylor.com to be denied, with the panel asking for a new case to be filed in Chinese.
The domain transfer was denied.
DECISION
Lord & Taylor IP LLC v. Zhang Wei
Claim Number: FA2212002024794
PARTIESComplainant is Lord & Taylor IP LLC (“Complainant”), represented by Renee Reuter, Missouri. Respondent is Zhang Wei (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is , registered with DNSPod, Inc..
PANEL
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.
Debrett G. Lyons as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on December 20, 2022; Forum received payment on December 20, 2022.
On December 30, 2022, DNSPod, Inc. confirmed by e-mail to Forum that the domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, 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 January 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 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@lordadtaylor.com. Also on January 3, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 30, 2023, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
The Complaint was submitted in English. The Forum sent a formal Deficiency Notice to Complainant stating, inter alia, that:
“Pursuant to verification received from the Registrar, the Registration agreement is in Chinese. You have two options: 1. Translate the Complaint and Table of Contents into Chinese, or 2. Modify the complaint to explain why Respondent is capable of understanding English and therefore, the proceedings should be conducted in English.”
The Deficiency Notice is explained by the facts that (i) under Rule 11(a), the language of the proceedings is Chinese since the registration agreement is in Chinese, and (ii), under the Rules the Panel has discretion to allow the proceedings to continue in a language other than Chinese if, for example, it is shown that a respondent can read and understand that other language and it is expeditious for the matter to so proceed.
Complainant elected to modify the Complaint and an Amended Complaint was filed. In the Amended Complaint it submits that the disputed domain name “is a misspelling of English words, ‘Lord and Taylor’, and the [disputed domain name] redirects to Complainant’s website, which is also in English. Finally, more than one past panel has found that Respondent has previously been determined to be proficient in English.”
There is no evidence accompanying the Amended Complaint that the disputed domain name redirects to Complainant’s website. There was no evidence accompanying the original Complaint that the disputed domain name redirects to Complainant’s website. In any event, such redirection would have been scant evidence of Respondent’s facility in English.
Further, there is no compelling evidence that “more than one past panel has found that Respondent has previously been determined to be proficient in English.” The cited cases were not brought by Complainant and, to the extent that they name Zhang Wei as the respondent, the Panel notes that “Zhang” is reportedly the third most common family name in China and one of the most common family names in the world, whilst the given name “Wei” is also exceedingly common in China. There is no reason for the Panel to find it more likely than not that the registrant of the disputed domain name is the respondent of the earlier cases.
DECISION
Pursuant to Rule 11, the Panel finds that the Complaint should be resubmitted in Chinese and the case recommenced.
Debrett G. Lyons, Panelist
Dated: February 1, 2023
