ADR Center for .eu attached to the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Arbitration Court)
Panel Decision
§ B12 of the .eu Dispute Resolution Rules (ADR Rules)
Case No.: 03654 Time of Filing: 2006-11-06 13:16:35 Administrative Contact: Tomáš Paulík Complainant Name: NedVast B.V, ir. Roel Mühlstaff Complainant's Authorized Representative Name: CMS Derks Star Busmann, mr. Marcoline van der Dussen Respondent Name: EURid Respondent's Authorized Representative Name: Domain Name(s): NEDVAST Other Legal Proceedings English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background Parties’ Contentions
To support its opinion, Complainant argues with the applicable .eu Sunrise Rules 16(1),(2) and (5) as well as the Article 10 and 14 of the EC Regulation 733/2002.
Complainant is of opinion that the Respondent’s decision is not in compliance with the relevant legislation and asks the panel to annul the disputed decision. Furthermore Complainant asks the panel again to attribute the domain name nedvast.eu to Complainant.
These documents may not serve as documentary evidence, since those documents are submitted after the end of 40 days period set forth by the Regulation.
Accepting these documents or any other documents received after the deadline as documentary evidence would clearly violate the Article 14 of EC Regulation 874/2004.
Therefore, the validation agent and the Respondent only considered the set of documents received on 1 March 2006.
To support its decision the Respondent draws to panel’s attention ADR cases 127 (BPW), 219 (ISL), 294 (COLT), 551 (VIVENDI), 984 (ISABELLA), 843 (STARFISH), 1931 (DIEHL, DIEHLCONTROLS), 2350 (PUBLICARE), 2881 (MRLODGE), 1886 (GBG), 954 (GMP), 1549 (EPAGES), 1674 (EBAGS), 2124 (EXPOSIUM), 706 (AUTOWELT), 954 (GMP), 551 (VIVENDI), 810 (AHOLD), 1194 (INSURESUPERMARKET), 1627(PLANETINTERNET), 3593 (CENTRIC), and 2957 (GAYROMEO).Discussion and Findings
Article 10 (1) of EC Regulation No 874/2004 of 28 April 2004 (hereafter "the Regulation") states that only holders of prior rights which are recognised or established by national or Community law shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts.
Article 14 of the Regulation states that " (…) Every applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. The documentary evidence shall be submitted to a validation agent indicated by the Registry. The applicant shall submit the evidence in such a way that it shall be received by the validation agent within forty days from the submission of the application for the domain name. If the documentary evidence has not been received by this deadline, the application for the domain name shall be rejected..(…)".
Section 16 (5) of the Sunrise Rules states that: "Unless otherwise provided in Annex 1 hereto, it is sufficient to submit the following Documentary Evidence for trade names and business identifiers referred to in Section 16(2) respectively 16(3):
(i) where it is obligatory and/or possible to register the relevant trade name or business identifier in an official register (where such a register exists in the member state where the business is located):
a. an extract from that official register, mentioning the date on which the trade name was registered; and
b. proof of public use of the trade name or business identifier prior to the date of Application (such as, but not limited to, proof of sales volumes, copies of advertising or promotional materials, invoices on which the trade name or business identifier is mentioned etc., proving public use of the name in the relevant member state); (…)".
Article 22 (1) b of the Regulation states that a decision taken by the Respondent may only be annulled when it conflicts with the Regulation.
The Complainant in its Complaint refers to the prior right connected with the trade name, however pointing also to the Section 16(1) of the Sunrise Rules - between others – which describes prior right connected with the company name but the Complainant did neither mention Section 16(4) nor provided the relevant documentary evidence. I assumed that the Complainant did not apply for the priority right in connection with the company name. The Complainant applied for the priority right in connection with the trade name solely according to Section 16(2) of the Sunrise Rules.
The reference to the Articles 10 and 14 of the EC Regulation 733/2002 in the Complaint made by the Complainant is understood as the reference to the Articles 10 and 14 of the Regulation.
The Complainant sent the documentary evidence to the processing agent in two sets:
- first set of documentary evidence (according to Section 16(5)(i)a. of the Sunrise Rules) consisting of a certificate of registration from the official register and a cover letter signed by the Director of Complainant on February 26, 2006 and received by the processing agent on March 1, 2006 (which is within the 40 days period according to Article 14 of the Regulation).
- second set of documentary evidence (according to Section 16(5)(i)b. of the Sunrise Rules) consisting of a leaflet EPE and the visit cards with the trade name and a cover letter signed by the Director of Complainant on March 23, 2006 and received by the processing agent on March 29, 2006 (which is out of the 40 days period according to Article 14 of the Regulation).
According to the procedure laid out in the Regulation the relevant question is not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right within the prescribed period.
Based on the documentary evidence received within the deadline, the validation agent found that the Complainant did not demonstrate that the claimed prior right is established and protected in the Netherlands because no proof of public use in the course of trade was provided.
In my opinion, the content of the Complaint as well as the Response and the Nonstandard Communication together with the attached documentation clearly shows that the Complainant did not recognised that the 40 days period for the submission of the documentary evidence lapsed on March 21, 2006. This fact is, however the key element of the dispute.
Summarizing the above stated, also bearing in mind the decisions made by panels of this Court, I did not find the contested decision to reject the application of the Complainant made by the Respondent in conflict with any of the European Union Regulations.Decision
the Complaint is DeniedPanelists
- Tomáš Borec
Date: 2007-02-12 Annex 1
The Panel reviewed the arguments of Complainant as well as Respondent and found no breach of any of the European Union Regulations in the Respondents decision.
Respondent rejected the registration of the domain name nedvast.eu in favour of Complainant since the Complainant did not meet the requirements set by the Article 14 of EC Regulation 874/2004 as well as Section 16(5) in connection with the Section 16(2) of .eu Sunrise Rules.
In more detail, the documentary evidence (according to Section 16(5)(i)b of the Sunrise Rules) have been signed by the Director of Complainant on March 23, 2006 and received by the processing agent on March 29, 2006, which is out of the 40 days period according to Article 14 of the Regulation and which lapsed on March 21, 2006.
According to the procedure laid out in the EC Regulation 874/2004 the relevant question is not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right within the prescribed period.
Based on the documentary evidence received within the deadline, the validation agent found that the Complainant did not demonstrate that the claimed prior right is established and protected in the Netherlands because no proof of public use in the course of trade was provided.
The Panel denied the complaint.