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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.: 00616 Time of Filing: 2006-04-21 10:34:10 Administrative Contact: Josef Herian Complainant Name: Wolfgang Ferner Complainant's Authorized Representative Name: Wolfgang Ferner Respondent Name: EURid Respondent's Authorized Representative Name: Domain Name(s): FERNER Other Legal Proceedings English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background
Aphrodite Ventures Ltd., a company that claimed in its application to have its seat in Hull, UK, applied for the domain name FERNER on April 7, 2006, just at the beginning of land rush period. The disputed domain name “FERNER” was granted by the Respondent (EURID) to Aphrodites Ventures Ltd.Parties’ Contentions
The domain was transferred to somebody who is no EU-resident with the name of Aphrodite Ventures Ltd.. There is no website “aphroditeventures”, the Email address “john@aphroditeventures.com” is not operative and owner of the website “aphroditeventures.com” is according to Enom, Inc, a firm called “Whois Privacy Protection, Inc, in Bellevue, WA (USA). This website is on sale. There is obviously some domain grabbing of “ferner.eu” because the sites “ferner.com” and “ferner.de” are registered and in use. Fax and telephone of Aphrodite Ventures, Ltd. are obviously out of order, too.
The Complainant is owner of the lawfirm “Ferner & Kollegen” which is respected throughout Europe and well known under the catchword FERNER. Due to the transfer and use of “ferner.eu” to Aphrodite Ventures the Complainants rights on his own name as well as his companies name FERNER are violated. It is obvious that neither the Registrant nor the Registrar has any right to use the name of Ferner but only the Complainant which applied for the disputed domain name, too.
The Complainant furthermore states that there is enough evidence that some American companies established non existing shell firms only to grab eu.domains. Aphrodites Ventures belongs to such an American company: it is not using its own domain, this domain is to sell, there is no sign how and why they could use the domain ferner.eu (only to grab it and sell it to the owner of ferner.com or ferner.de). It is therefore obvious that Aphrodite Ventures Ltd. is only set up to grab .eu-domains. In discussion groups (like “http://www.bobparsons.com/index.php?/archives/115-EURidResponds.html” or “http://forum.domainfactory.de/forum/printthread.php?t=42252”) it is known that shell companies like Aphrodite Ventures Ltd. are grabbing domains. Even the Respondent knows about this problem as it issued a press release on July 24, 2006, stating that 74.000 domain names under the top level domain .eu had been put "on hold" awaiting further legal proceedings. That press release also stated that 400 registrars had been sued for breach of contract.
The Complainant requested the transfer of the disputed domain name to himself.
In a so called Nonstandard Communication the Respondent contended later on that Recital 11 of Commission Regulation (EC) No 874/2004 of 28 April 2004 (hereafter "the Regulation") states that "After the termination of the phased registration the principle of first come first served should apply in the allocation of domain names." Article 12 (2) of the Regulation states that "The duration of the phased registration period shall be four months." The phased registration period started on December 7, 2005. The land rush period started on April 7, 2006.
Aphrodite Ventures Ltd. applied for the domain name FERNER on April 7, 2006 and was the first to do so. The domain name was automatically registered in the name of Aphrodite Ventures Ltd.. The registration by the Respondent was therefore fully in line with recital 11 of the Regulation.
Pursuant to article 22 (1) b of the Regulation, an ADR procedure may be initiated by any party where a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733/2002. The Respondent did not breach the applicable regulations, as explained above. Therefore, the registration of the domain name FERNER in the name of Aphrodite Ventures Ltd. may not be annulled. With regard to domain names applied for after the period of phased registration ADR proceedings must be initiated against the holder of the domain name, not the Respondent.Discussion and Findings
The disputed domain name FERNER was applied for by an UK company: Aphrodites Ventures Ltd. of 46 Peel Street, HU3 1QR, UK. It might be that an US company specialised in domain grabbing has set up this company in UK for .eu-domain application purposes only, but the Panel conducting an inquiry found evidence that a company named Aphrodites Ventures Ltd. has obviously been legally incorporated as “Private Limited with share capital on March 21, 2006, in East Yorkshire, UK (http://www.ukdata.com/numbers/05749896.html). As the Panel has no right to question the company register of a member state of the EU it has to accept that the applicant for the disputed domain name is a company entitled to file an application for an .eu-domain name according to Article 4(2) (b) of Regulation (EC) No 733/2002.
The land rush period started on April 7, 2006. Aphrodite Ventures Ltd. applied for the domain name FERNER on April 7, 2006, so the disputed registration by the Respondent was fully in line with recital 11 of Commission Regulation (EC) No 874/2004.
Taking all filed documents and the circumstances of application in mind the Panel does not doubt that the Complainant has better rights in respect of the disputed domain name FERNER than the Aphrodites Ventures Ltd. but he would have had to initiate ADR proceedings against the holder of the domain name, not against the Respondent.Decision Panelists
- Mag. Marcus Essl, LL.M., M.E.S.
Date: 2006-11-20 Annex 1
As land rush period started on April 7, 2006 and Aphrodite Ventures Ltd. applied for the domain name FERNER on April 7, 2006, the disputed registration by the Respondent was fully in line with recital 11 of Commission Regulation (EC) No 874/2004. Taking all filed documents and the circumstances of application in mind the Panel does not doubt that the Complainant has better rights in respect of the disputed domain name FERNER than the Aphrodites Ventures Ltd. but he would have had to initiate ADR proceedings against the holder of the domain name, not against EURID.
The Complaint is Denied.