Before the reviewing the case on the merits, the Panel addresses the procedural objections raised by the Respondent concerning:
1. the necessity to "acquire" the judgement issued by the Court of Appeal of Milan, because it is essential for the complete review of the case;
2. the necessity to provide a certified and sworn translation of the Complaint and the documents annexed thereto.
With reference to such objections, the Panel notes as follows:
1. The UDRP Rules in principle provide only for a single round of pleadings, and do not contemplate discovery as such. Accordingly, the Panel’s assessment will normally be made on the basis of the evidence presented in the Complaint and any filed Response. Paragraph 12 of the UDRP Rules makes clear that it is for the Panel to request, in its sole discretion, any further statements or documents from the parties that it deems necessary. Paragraph 10 of the UDRP Rules similarly vests the Panel with the authority to determine the admissibility, relevance, materiality and weight of the evidence, and also to conduct the proceedings with due expedition. While relatively infrequent, where the Panel believes it would benefit from additional information or arguments from the parties concerning contentions made in the pleadings or otherwise, it may issue a procedural order to the parties requesting such information or arguments.
In the present case the Complainant relies on three judgements rendered by Italian courts. By virtue of the judgement of the Court of Cassation, which dismissed the Respondent's appeal in cassation, the judgments of the Court of Appeal of Milan (second instance) and the Court of Milan (first instance) became final (res iudicata) starting from the date of publication (21 February 2020). The fact that the judgements are final has also been confirmed by the Respondent in its Response ("These proceedings were commenced [...] on the basis of a final judgment that had ended legal proceedings brought before courts of first and second instance and before the Supreme Court of Cassation").
While the judgements of the Court of Milan and the Court of Cassation have been submitted by the Complainant, the judgement of the Court of Appeal of Milan has not been annexed to the Complaint. However, the Court of Cassation's judgement has sufficiently described Court of Appeal's reasoning and ruling. Whilst the Respondent considers the appeal judgement "essential" for the complete review of this case, and had been party (appellant) in the legal proceeding before the Court of Appeal of Milan, and, thus, had such judgement in its hands or, however, easy access to it, it has not submitted the judgement in question with its Response. Under paragraph 5, letter c, of the UDRP Rules the Response should respond specifically to the statements and allegations contained in the Complaint, include any and all bases for the Respondent to retain registration and use of the disputed domain name, and annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents. Although the Respondent has had the possibility to do so, has neither replied to the statements and allegations of the Complainant, nor included any bases to retain the registration and use of the disputed domain name, nor annexed any documentary evidence it considers "essential" to decide the present dispute. Under paragraph 14 of the UDRP Rules, if a Party, in the absence of exceptional circumstances, does not comply with any provision of the UDRP Rules, the Panel shall draw such inferences therefrom as it considers appropriate.
According to this Panel, the Complaint and its documents and the Response are sufficient to decide this dispute.
2. Paragraph 11 of the UDRP Rules provides that the language of the administrative proceeding shall be the language of the registration agreement of the disputed domain name (in the present case English), subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding (e.g., nationality of the parties). The Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding. However, neither the UDRP Rules, nor the Supplemental Rules of the CAC require the parties to meet certain formalities, such as providing certified or sworn translation of the documents.
The Complaint was submitted in English and two out of six annexes of the Complaint are in English. The remaining four annexes (the extract of the database of the Italian Trademark Office, the judgement of the Italian Court of Cassation, the warning letter sent to the Respondent, and the judgement of the Court of Milan) are in Italian accompanied by English translation, defined by the Complainant as raw translations.
This Panel is composed of a Panelist who is also an Italian qualified lawyer and, therefore, well understands the Italian language, including legal terminology used by the above-mentioned judgements and the original warning letter.
Moreover, the Panel finds that the English translation of the Italian documents provided by the Complainant are sufficiently reliable.
Therefore, the Respondent's right to defend itself in this proceeding and the ability of the Panel to review this case have not been compromised or affected.
The procedural objections raised by the Respondent are to be considered manifestly ill-founded and a delaying tactic.
The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
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