CircleID: An increasing number of domain name disputes are being conducted in languages other than English, a trend that presents a new challenge for some trademark owners.
In 2015, 85.77% of all domain names disputes at the World Intellectual Property Organization (WIPO) were conducted in English — down from an all-time average of 88.01% and a record high (in 2000) of 99.84% (disregarding 1999, the first year of the UDRP, because only one case was filed — in English — that year).
The recent change may be slight — and clearly English remains the dominant language — but the drop over time is significant. Plus, the choice of language can have a huge impact on how (or even whether) a trademark owner chooses to fight a cybersquatter.
The Rules for the Uniform Domain Name Dispute Resolution Policy (UDRP) dictate the language for a dispute proceeding:
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.
Clearly, the largest retail domain name registrars — including GoDaddy, Network Solutions, eNom and many, if not most, others — have English-language registration agreements. Therefore, even if the domain name registrant is from a country where English is not an official language, the UDRP proceeding likely will be conducted in English.
But, of course, many cybersquatters register their domain names with registrars that have registration agreements in other languages — either because the registrant simply prefers a registrar that speaks its own language or, perhaps, because the registrant wants to frustrate a trademark owner from an English-speaking country.
Fortunately, for English-speaking trademark owners, UDRP precedent allows proceedings to be conducted in English under certain circumstances even if the registration agreement is in another language. As summarized by the WIPO Overview:
Recognizing the practical need which may arise for a preliminary determination of the language of proceeding prior to their appointment, panels have found that, in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and the complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement. Such acceptance is subject to the panel's authority to determine the appropriate language of the proceeding on appointment. Likewise, in appropriate circumstances, a response in a language different from that of the complainant may be accepted.
In deciding the appropriate language, UDRP panelists often consider such factors as whether the disputed domain name or associated website includes English words, whether the registrant appears to be able to communicate in English, and the impact on the complainant.
Still, it may be unclear when a UDRP complaint is filed what language(s) ultimately will be accepted for the proceeding, a situation that a trademark owner must be prepared to accept. And, even if an English complaint is allowed, the UDRP service provider may accept a response in another language. As a result, a complainant may incur additional expense and challenges in such a situation.
After English, the most popular languages in WIPO domain name disputes in 2015 were Spanish and Chinese.
(Notably, the Uniform Rapid Suspension System (URS), a limited dispute policy that applies to the "new" top-level domains — but not legacy domains such as .com — makes clear that English is the only acceptable language for a complaint.)
Whether the increase in non-English UDRP proceedings is a result of chance (perhaps registrars in non-English speaking countries are simply doing a better job of marketing their services) or purposeful (perhaps registrants are choosing those registrars knowing the additional hurdle it will create for some trademark owners) is unclear. Regardless, it's apparent that language is an increasingly important issue in UDRP proceedings.
Written by Doug Isenberg, Attorney & Founder of The GigaLaw FirmFollow CircleID on TwitterMore under: Domain Names, Policy & Regulation
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