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Consolidation and Language of the Proceedings

The Policy authorizes either party to petition to consolidate “multiple disputes … before … the first Administrative Panel appointed to hear a pending dispute between the parties … provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN” [Paragraph 4(f)]. The Complainant in Farouk Systems, Inc. v. QYM, D2009-1658 (WIPO January 19, 2010) commenced 11 separate cases; petition for consolidation granted. The procedure is the twin to a single case against multiple respondents who are shown to be alter egos of or controlled by a single domain name holder [Paragraph 3(c)].

In either case the Panel must find an existing relationship among the respondents, Deckers Outdoor Corporation v. Karen McDougall, Frances Kirwan, Richard Abbots, Nicola Hammill, Sadika Ekemen, Stephen Gould, Christina Papadaki, Felicity Poole, Wang Changgui and [redacted], FA0908001281082 (Nat. Arb. Forum November 30, 2009) and in the absence of an existing relationship will – as the Panel did in Deckers Outdoor – dismiss the complaint against unrelated parties.

The Panel in Farouk Systems granted the Complainant’s petition on proof that “the Respondents share the same identical address, telephone number, fax number and e-mail address … notwithstanding the use of different initials in respect of the owner’s registration details for the disputed domain names.” The Respondent did not answer and there was no counter evidence to contradict the Complainant’s proof. There was also a similarity of design and details on each of the websites to which the domain names resolved.

A complementary issue in Farouk Systems involved the language of the proceedings. All of the disputed domain names were registered with a Chinese registrar. Ordinarily, the language of the proceedings is dictated by the language of the Registration Agreement, but the Panel is authorized “to determine otherwise, having regard to the circumstances of the administrative proceeding” [Rule 11(a) of the Rules of the Policy]. The Complainant adduced the following persuasive proof that the Respondent would not be prejudiced by the proceedings being conducted in English since it

– used English to “promote and sell its unauthorised and/or counterfeit products on the Websites;
– “advertises and accepts US dollars as the currency for payment;
– states in its “Conditions of Use” that “any activities or transactions occurring on the Websites will be resolved by arbitration in the State of Victoria, Australia”;

These expressions of sale and legal recourse indicate that the intended market for the goods offered on the website was English speakers. This “suggest[s] the likely possibility that the Respondent is conversant and proficient in the English.” In view of this “it is not foreseeable that the Respondent will be prejudiced, should English be adopted as the language of the proceedings.” And, prejudice not being foreseeable the Panel adopted English to review the record and write his decision.

Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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