{
    "case_number": "CAC-ADREU-006328",
    "time_of_filling": null,
    "domain_names": [
        "eyedoc.eu"
    ],
    "case_administrator": "Tereza Bartošková (Case admin)",
    "complainant": [
        "Joachim Oldendörp ( )"
    ],
    "complainant_representative": null,
    "respondent": [
        "Miguel Rebelo Silva"
    ],
    "respondent_representative": null,
    "factual_background": "The Complainant, Joachim Oldendoerp, is an ophthalmologist with a practice in Euskirchen, Germany.\r\n\r\nThe Complainant owns a Community Trade Mark in the term EYEDOC (registered on 16 October 2008), together with the domain name <eyedoc.de>.\r\n\r\nThe Respondent, Miguel Rebelo Silva, part owns a Portuguese company incorporated on 7 January 2011.  The company provides medical ophthalmology care and services. \r\n\r\nThe Respondent registered <eyedoc.eu> (the \"Disputed Domain Name\") on 10 August 2011.  It is not pointing to an active website but has been used to send and receive email.\r\n\r\nThe Complainant filed a Complaint under the .EU Alternative Dispute Resolution (\"ADR\") procedure with the Czech Arbitration Court on 16 August 2012.  The deadline for submitting the Response was 12 October 2012 and it was filed on 5 October 2012.  The Panel was appointed on 12 October 2012.",
    "other_legal_proceedings": "N\/A",
    "discussion_and_findings": "Paragraph B11(d)(1) of the Rules provides that the Panel shall issue a decision granting the remedy requested in the event that the Complainant proves the following:\r\n\r\n“(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law and; either\r\n\r\n(ii) The domain name has been registered by the Respondent without rights or legitimate interest in the name; or\r\n\r\n(iii) The domain name has been registered or is being used in bad faith.”\r\n\r\nTaking each of these issues in turn, the Panel decides as follows:\r\n\r\nA. \tIdentical or Confusingly Similar\r\n\r\nBased on the evidence put forward by the Complainant the Panel finds that the Complainant has a registered Community Trade Mark in the term EYEDOC. \r\n\r\nThe Panel considers that, as previously held in numerous other Panel decisions, the generic top level domain suffix .EU is without legal significance and has no effect on the issue of similarity.  \r\n\r\nOn the basis of these considerations, the Panel finds that the Disputed Domain Name is identical to a trade mark in which the Complainant has rights recognised by the national law of an EU Member State and\/or Community law.  Paragraph B11(d)(1)(i) of the Rules is therefore satisfied.\r\n\r\nB. \tRights or Legitimate Interests\r\n\r\nThe second element to consider under Paragraph B11(d)(1)(ii) of the Rules is whether the Respondent has registered the Disputed Domain Name without rights or legitimate interests in it.  Paragraph B11(e) of the Rules sets out various ways in which a Respondent may demonstrate rights or legitimate interests in a domain name, without limitation, as follows:\r\n\r\n\"(1) prior to any notice of the dispute, the Respondent has used the domain name or a name corresponding to the domain name in connection with the offering of goods or services or has made demonstrable preparation to do so;\r\n\r\n(2) the Respondent, being an undertaking, organization or natural person, has been commonly known by the domain name, even in the absence of a right recognized or established by national and\/or Community law;\r\n\r\n(3) the Respondent is making a legitimate and non-commercial or fair use of the domain name, without intent to mislead consumers or harm the reputation of a name in which a right is recognized or established by national law and\/or Community law.\"\r\n\r\nAs far as the burden of proof is concerned, the Panel finds the Overview of CAC panel views (available here: http:\/\/eu.adr.eu\/html\/en\/handbook_final_for_publication.pdf) to be very useful.  The Panel subscribes to the majority view which provides that the Complainant only needs to establish a prima facie case concerning the Respondent's lack of rights or legitimate interests and the onus then shifts to the Respondent to rebut the Complainant's assertion (see Paragraph 17).\r\n\r\nIt is debatable whether the Complainant has in fact done enough to establish a prima facie case because the Complainant's submission is very short.  However it is clearly always difficult to prove a negative and the Complainant has highlighted what seem to be two pertinent facts, namely that the Disputed Domain Name is not pointing to an active website and that the Respondent's LinkedIn profile would suggest that he works in the field of telecommunications rather than ophthalmology services.  \r\n\r\nHowever it is ultimately unnecessary for the Panel to decide whether this is in fact enough to establish a prima facie case because the Panel finds that the Respondent has done more than enough to rebut the Complainant's assertions.  \r\n\r\nBased on the submissions and evidence provided by the Respondent, the Panel is satisfied that the Respondent has rights and legitimate interests in the Disputed Domain Name for the following reasons:\r\n\r\n- Prior to any notice of the dispute, the Respondent has used the Disputed Domain Name in connection with the offering of goods or services in accordance with Paragraph B11(e)(1).  Even though the Disputed Domain Name is not pointing to an active website, the Respondent has supplied evidence that it is being actively used to send and receive email.  There is nothing to suggest that legitimate use of a domain name has to involve pointing it to a website, and in the Panel's opinion use for email is just as legitimate.\r\n\r\n- The Respondent has been commonly known by the Disputed Domain Name in accordance with Paragraph B11(e)(2).  The Respondent has supplied evidence that he part owns a company that was incorporated in Portugal under the name \"Eyedoc\" over seven months before the Disputed Domain Name was registered.  Furthermore, the Disputed Domain Name is being used in connection with services offered by the Respondent's Eyedoc company.\r\n\r\nIt should be noted that, at the time the Disputed Domain Name was registered in 2011, it was only necessary for the Respondent, as a natural person, to be resident within the EU and that no prior rights were necessary (this was only a requirement during the initial Sunrise Period).  The Respondent's submission is thus slightly confused in this regard as it cites Article 14 of EC Regulation 874\/2004 which only relates to the validation of prior rights during the Sunrise Period and provides that domain names during this period were granted to prior right holders on a first come first served basis.  \r\n\r\nHowever, Article 14 of EC Regulation 874\/2004 nevertheless illustrates the point that .EU domain names were never meant to be allocated to the holder of the earliest prior right and, where there are two legitimate prior right holders within the EU, the owner of the oldest prior right does not take priority.  In this case the Complainant's Community Trade Mark dates from 2008, whereas the Respondent's company was incorporated in 2011, but nothing in the relevant EC Regulations or the Rules provides that this grants the Complainant a better right to the Disputed Domain Name.  The Panel finds that both Parties have legitimate prior rights, but the Respondent was first to register the Disputed Domain Name and thus there is no reason to overturn this. \r\n\r\nThe Panel therefore finds that the Respondent has rights or legitimate interests in the Disputed Domain Name.  Paragraph B11(d)(1)(ii) of the Rules is therefore not satisfied.\r\n\r\nC.\tRegistered or Used in Bad Faith\r\n\r\nThe third element that falls to be considered under Paragraph B11(d)(1)(iii) of the Rules is whether the Disputed Domain Name has been registered or is being used in bad faith.  In view of the fact that it is only necessary for a complainant to succeed on either the second element under Paragraph B11(d)(1)(ii) or the third element under Paragraph B11(d)(1)(iii), it is still technically possible for a complainant to succeed even if a respondent has been found to have rights or legitimate interests (even though this may seem rather unlikely).  Given that this is the case here, it is therefore necessary for the Panel to go on to consider the issue of bad faith.  \r\n\r\nAs far as the burden of proof in relation to bad faith is concerned, again the Panel would subscribe to the majority view (set down in the Overview of CAC panel views) that it is for the Complainant to prove that the Respondent has registered or used the Disputed Domain Name in bad faith on the balance of probabilities (again see Paragraph 17). \r\n\r\nThe Complainant makes no reference to registration or use in bad faith in his submission and has not attempted to prove this.  In any event, given the evidence put forward by the Respondent, the Panel concludes that the Respondent has not registered or used the Disputed Domain Name in bad faith.  The Parties operate entirely in different countries (Germany and Portugal) and nothing would suggest that the Respondent had heard of the Complainant either at the time when he registered the Disputed Domain Name or indeed since.  In view of the fact that the Parties appear to be targeting different geographical markets, it seems clear that the Respondent is not trying to profit from the goodwill and reputation of the Complainant.  \r\n\r\nThe Panel therefore concludes that the Complainant has not succeeded in proving that the Disputed Domain Name was registered or is being used in bad faith.  Paragraph B11(d)(1)(iii) of the Rules is therefore not satisfied.\r\n\r\nD.\tNo Abuse of ADR Proceeding\r\n\r\nParagraph B12(h) provides that the Panel may declare in its decision that the Complaint was brought in bad faith and constitutes an abuse of administrative proceeding.  The Respondent appears to be requesting such a declaration when he states \"it appears that the Complainant is using this ADR proceeding in an abusive way to acquire the Domain Name in dispute, because it comprises factual errors which are likely to have been made with the intent to deceive.\"  \r\n\r\nHowever, whilst the Complaint is short, the Panel does not think that it was initiated in bad faith and is of the opinion that the Complainant genuinely believed that the Respondent had no rights or legitimate interests in the Disputed Domain Name based on publicly available information.  Although there is no duty on a complaint to contact a respondent before filing a complaint under the .EU ADR Rules, this may have been advisable in this case as it may have enabled the Complainant to make a better assessment of his chances of success and thus to avoid filing an unsuccessful Complaint.  However the Panel finds that the Complaint does not constitute an abuse of administrative proceeding\r\n\r\nIt should be noted however that the Panel's decision only relates to the Complaint's failure to make out his case under the .EU ADR Rules and has no bearing on any other issues. In particular the Panel makes no finding on the question of whether or not the Respondent's activities infringe the Complainant's Community Trade Mark in the term EYEDOC.",
    "decision": "For all the foregoing reasons, in accordance with Paragraph B12 of the Rules, the Complaint is denied and the Panel orders that the Disputed Domain Name should remain with the Respondent.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2012-10-26 00:00:00",
    "informal_english_translation": "I.      Disputed domain name: eyedoc.eu\r\n\r\nII.     Country of the Complainant: Germany, country of the Respondent: Portugal\r\n\r\nIII.    Date of registration of the domain name: 10 August 2011\r\n\r\nIV.    Rights relied on by the Complainant (Art. 21 (1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n        1.   Word CTM, reg. No. 006849202, for the term eyedoc, filed on 20 April 2008, registered on 16 October 2008 in respect of goods and services in classes 5, 9, 10 and 44\r\n\r\nV.    Response submitted: Yes\r\n\r\nVI.   Domain name is identical to the protected right of the Complainant\r\n\r\nVII.  Rights or legitimate interests of the Respondent (Art. 21 (2) Regulation (EC) No 874\/2004):\r\n        1. Yes\r\n        2. Why: The term eyedoc is a common English term meaning ophthalmology doctor. The Respondent part owns a Portuguese company that provides medical ophthalmology care and services. Prior to any notice of the dispute, the Respondent has used the Disputed Domain Name in connection with the offering of services in accordance with Paragraph B11(e)(1).  Even though the Disputed Domain Name is not pointing to an active website, the Respondent has supplied evidence that it is being actively used to send and receive email.  There is nothing to suggest that legitimate use of a domain name has to involve pointing it to a website, and in the Panel's opinion use for email is just as legitimate.\r \n\r\nVIII. Bad faith of the Respondent (Art. 21 (3) Regulation (EC) No 874\/2004):\r\n        1. No\r\n        2. Why: The Complainant made no reference to registration or use in bad faith. Moreover, the Parties operate entirely in different countries (Germany and Portugal) and nothing would suggest that the Respondent had heard of the Complainant either at the time when he registered the Disputed Domain Name or indeed since.  In view of the fact that the Parties appear to be targeting different geographical markets, it seems clear that the Respondent is not trying to profit from the goodwill and reputation of the Complainant.\r\n\r\nIX.   Other substantial facts the Panel considers relevant: The Respondent suggested that the Complaint has been filed in bad faith. The Panel does not think that it was initiated in bad faith and is of the opinion that the Complainant genuinely believed that the Respondent had no rights or legitimate interests in the Disputed Domain Name based on publicly available information.\r\n\r\nX.    Dispute Result: Complaint denied\r\n\r\nXI.   Procedural factors the Panel considers relevant: None\n",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}