Certified Translation Services for Breach
of Contract Litigation

Federal Court Criticizes Translation of Contract
That Was Not Properly Sworn, Certified and Notarized

Certified Translations for Trademark Infringement and Breach of Contract Litigation

There’s an increased need for certified translation services for breach of contract litigation. In Innovative Technologies v. Nanoprotech FL, LLC, et al., the plaintiff filed suit in a New York district court alleging violations of the Lanham Act, 15 U.S.C. 1501, New York General Business Law, and New York common law as a result of a trademark and breach of contract dispute. In the lawsuit, the plaintiff claimed that the defendant improperly and illegally profited off trademarks that were substantially similar to the plaintiff’s trademarks and that the defendants illegally used the plaintiff’s original trademark.

Plaintiff, a Russian company, created certain anticorrosion lubricants under the “Nanoprotech” brand that it has distributed all over the world. The owner of the Defendant, a Florida-based company, had served as the plaintiff’s exclusive distributor of “Nanoprotech” products in the Czech Republic from 2010 to 2011. In order to protect it brand, the plaintiff registered the “Nanoprotech” trademark in with Russia in 2011, with the international Madrid system in 2011, and with the United States Patent and Trademark Office in 2014.

In 2014, the parties entered into an agreement with the defendant corporation’s predecessor whereby the predecessor was granted exclusive rights to sell the “Nanoprotech” lubricants within the U.S. and Canada. In exchange, it promised not to sell or promote the products outside of the U.S. and Canada. Nevertheless, Plaintiff claimed that the defendants sold and promoted the products in violation of their agreement and that defendants “tortuously interfered” with Plaintiff’s business relationships abroad.

In response to the Plaintiff’s lawsuit, the defendants filed a motion to dismiss pursuant to the forum non conveniens doctrine. As with many contracts, the parties’ agreement contained a “forum selection” clause. The defendants argued in their motion to dismiss that the appropriate forum for resolving the dispute was the “commercial courts of St. Petersburg,” not a New York federal court.

Certified Russian to English Translation of Contract Submitted by Defendants.

In analyzing the defendants’ arguments, the court noted that the parties presented two separate contracts to the court. The parties disputed which contract should control. (The plaintiff maintained that one of the contracts was forged.) As to the issue of forum selection, both contracts pointed to Russian law. Nevertheless, the plaintiff argued that the Russian forum selection clause was not mandatory because it did not require venue in the Russian Federation exclusively.

The defendants submitted a “certified translation of the Russian language version of the agreement” that was substantially different from the English version and argued that, according to this translation, the forum selection clause was mandatory.

Court Holds Forum Selection Clause in Contract Not Mandatory.

The court agreed with the plaintiff that the forum selection clause was not mandatory. Citing Proyecfin de Venezuela, S.A. v. Banco Industrial de Venezuela, S.A., 760 F.2d 390, 396 (2nd Cir. 1985), the court held that the forum selection clause in the parties’ agreement left “open the possibility that an action could be brought in any forum where jurisdiction can be obtained either inside or outside” Russia. The court also refused to consider the defendant’s newly translated version of the contract on the grounds that the translation that should govern was the one signed by the parties and included in the contracts because the parties relied on the latter translation at the time of the agreement.
The court further held that the forum selection clause had “neither obligatory venue language nor a mandate that Russia’s courts maintain exclusive jurisdiction over claims” arising out of the parties’ 2014 agreement.

Translator’s Affidavit Issue

Importantly, the court also rejected the translation submitted by the defendants because the “translator’s affidavit” was not sworn under penalty of perjury or notarized. The court held that it would not “credit a translation with a deficient supporting affidavit.”

Court Also Finds No Evidence That Russian Court Was “Competent” to Hear Dispute.

After ruling that the forum selection clause did not require the matter to be decided in a Russian court of law, the court next turned to the issue of whether defendant’s “forum non conveniens” argument was viable. The court explained that the 2nd court of appeals has created a three part test to assist the court in ruling on forum non conveniens claims. According to this test, the court must 1) determine the degree of deference to be afforded to the plaintiff’s choice of forum; 2) consider whether the alternative forum can adequately adjudicate the dispute; and 3) balance the private and public interests implicated. See Chirag v. MT Marida Marguerite Schiffahrts, 605 F.App’x 16, 20 (2nd Cir. 2015).

The court rejected the defendants’ forum non conveniens claim because the defendants did not present any evidence that the commercial courts in St. Petersburg permitted litigation of the plaintiff’s claims, did not submit any expert testimony that St. Petersburg courts had jurisdiction of the commercial courts, and did not present any evidence that Russian courts were otherwise “competent” for deciding this dispute. The court noted that defendants had a “heavy burden” of establishing that U.S. federal court was not a proper forum to decide the dispute and that they had failed to show how St. Petersburg’s commercial courts were adequate.

The case is Innovative Techs. LLC v. Nanoprotech FL, LLC, Court No. 16-CV-3797 decided on March 22, 208 in the U.S. District Court for the Eastern District of New York.

All Language Alliance, Inc. provides certified document translations from Mandarin Chinese, English, Russian, Korean, French, German, Dutch, Hebrew, and other languages.  Our notary translations include properly sworn, certified and notarized Translator’s Affidavit and are accepted by world court and U.S. courts.  And we provide experienced deposition interpreters for breach of contract litigation.

**This legal document translation blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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