{
    "case_number": "CAC-ADREU-000271",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7 December 2005, Complainant applied, on behalf of topeu.com s.r.o., a limited liability company incorporated under the laws of the Czech Republic and domiciled at Pilsen (30100), Bendova 16, for the Domain Names under the phased registration (“Sunrise”) period. \r\n\r\nOn the same date, but earlier in real time, Classic Internet applied for the domain name CASINO, Internetportal und Marketing GmbH applied for the domain name AUTO, Multham B.V. applied for the domain name PORN, Cars VOF applied for the domain name PORNO, La Française des Jeux applied for the domain name KENO and Internetportal und Marketing GmbH applied for the domain name BANK. The six applicants all applied for the domain name on the basis of a prior right, a registered trade mark. After validation of the applications of these six applicants the Respondent found that these applicants had demonstrated a prior right in the domain name in accordance with the procedure set out in Regulation 874\/2004 and decided to register the Domain Names on the first come, first served basis, in the name of the applicant, which had applied for the domain name. Consequently, as a result of the first come, first served principle the Domain Names for which Complainant applied, were not registered in its name. \r\n\r\nThe Complainant has lodged this Complaint against Respondents decision to award the Domain Names to third parties.",
    "other_legal_proceedings": "There are no other legal proceedings of which the Panel is aware that are pending or decided and that relate to the disputed domain names.",
    "discussion_and_findings": "In accordance with Paragraph B11 (a) of the ADR Rules the Panel shall decide a Complaint on the basis of the statement and documents submitted and in accordance with the Procedural Rules. \r\n\r\nThe Complaint is filed against the Registry. In accordance with Paragraph B11 (c) the main remedy available pursuant to an ADR Proceeding where the Respondent is the Registry shall be the annulment of the disputed decision taken by the Registry. The Panel may decide in appropriate cases pursuant to the Procedural Rules, Registration Policy, Sunrise Rules and\/or the Terms and Conditions that the domain name in question shall be transferred, revoked or attributed. However, with regard to any Registry decision relating to a prior right invoked during the phased registration period such measures of transfer and attribution will only be granted by the Panel if the Complainant is the next applicant in the queue for the domain name concerned and subject to the decision by the Registry that the Complainant satisfies all registration criteria set out in the European Union Regulations and to subsequent activation by the Registry of the domain name in the name of the Complainant who is the next applicant in the queue.\r\n\r\nComplainant, however, requests to revoke the decision of the Register concerning the awarding of the Domain Names casino.eu, auto.eu, keno.eu, porn.eu, porno.eu, and bank.eu pursuant to Paragraph B11 (b) of the ADR Rules. \r\n\r\nParagraph B11 (b) of the ADR Rules stipulates the remedies available pursuant to an ADR Proceeding where the Respondent is the Domain Name Holder in respect of which domain name the Complaint was initiated shall be limited to the revocation of the disputed domain name(s) or, if the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b) of Regulation (EC) No 733\/2002, the transfer of the disputed domain name(s) to the Complainant. \r\n\r\nTaking the foregoing into consideration the Panel considers that Complainant has requested a remedy, inter alia revocation of the decision of the Register concerning the awarding of the Domain Names casino.eu, auto.eu, keno.eu, porn.eu, porno.eu, and bank.eu, which can only be invoked in the event Respondent is the Domain Name Holder as stipulated in Paragraph B11 (b) of the ADR Rules. The Panel therefore concludes that the remedy sought by Complainant will and can not be dealt with in this ADR Proceedings, since this remedy is solely available against Respondents, who qualify as Domain Names Holder and not against the Registry, i.e. Respondent. \r\n\r\nNotwithstanding the foregoing the Panel will address the factual and legal grounds of Complainant for as far the Panel in its sole discretion deems necessary for its decision. \r\n\r\nPursuant to Paragraph B7 (d) of the ADR Rules the Panel shall determine in its sole discretion the admissibility, relevance, materiality and weight of the evidence. Furthermore, the Panel is permitted in its sole discretion to conduct its own investigations on the circumstances of the case, Paragraph B7 (a) of the ADR Rules. \r\n\r\nThe Panel has reviewed the statements and allegations of Complainant and conducted its own investigation on the circumstances of the case. The claims of Complainant all relate to the interpretation of Paragraph 10 (2) of Regulation (EC) No 874\/2004 in combination with word “domain name”. Paragraph 10 (2) of Regulation (EC) No 874\/2004 deals with the registration on the basis of a prior right in the Sunrise period:\r\n\r\n“The registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exist, as written in the documentation which proves that such a right exists.”\r\n\r\nComplainant shares the view that the Domain Names on the basis of this Paragraph can only be applied for if the prior right is identical to the domain name, inter alia the domain name “casino.eu” can only be applied for if a prior right exist for the complete identical name CASINO.EU. Prior rights with respect to the name CASINO should therefore not be taken into consideration, according to Complainant. Complainant subsequently alleges that the Domain Names should have been granted to him, since Complainant has showed sufficiently that solely Complainant has prior rights which are completely identical to the Domain Names, i.e. the national trade mark registrations “casino.eu”, “auto.eu”, “keno.eu”, “porn.eu”, “porno.eu” and “bank.eu”.\r\n\r\nThe Panel observes that Complainant’s interpretation of Paragraph 10 (2) of Regulation (EC) No 874\/2004 and Complainant’s understanding of a “domain name” as set out above is incorrect. \r\n\r\nA “domain name” means under the Regulation a domain name registered directly under the .eu Top Level Domain or for which a request for registration or Application has been filed with the Registry. The suffix “.eu”, the denomination of the European Top Level Domain therefore is no part of the domain name under the Regulation. Prior rights in a domain name consequently only relate to the wording of the domain name without the suffix “.eu”. \r\n\r\nFurthermore, pursuant to Paragraph 10 (2) of Regulation (EC) No 874\/2004 registration of a domain name on the basis of a prior right consists in the registration of the complete name for which the prior right exists. An application for registration of a domain name comprising part of the complete name for which prior rights exists is not possible, Section 19 (1) Sunrise Rules.\r\n\r\nSection 19 (5) of the Sunrise Rules more specifically determines:\r\n\r\n“If an Applicant claims a Prior Right to a name that includes a internet top-level domain (such as, but not limited to,.com, .net or .eu), the complete name for which a Prior Right exists includes that domain suffix.”\r\n\r\nComplainant claims he has prior rights in the trade marks “casino.eu”, “auto.eu”, “keno.eu”, “porn.eu”, “porno.eu” and “bank.eu”. This implies that the complete name of these trade marks has to be taken into consideration and consequently, after the Panel verified the trade mark names, it is completely obvious that these trade marks do not match the domain names. The complete names of the trade marks are not identical to the Domain names, since all trade mark names contain the word “.eu”. Additionally, the Panel notes that each trade mark of Complainant is a device mark and the Panel has serious doubts if in fact any word element in these device marks is predominant at all to qualify as prior right.  \r\n\r\nOn the basis of the statements and evidence provided by Complainant the Panel concludes that Complainant has no prior rights that are relevant for making a valid Sunrise claim in relation to the Domain Names, therefore the Panel concludes that Complainant has no legal interest in having the decision of Respondent annulled as this would never lead to a situation in which the Domain Names would be transferred to the Complainant or that the Complainant in any other way would become the Domain Name holder. In addition the Panel considers that the Complainant is not the next in the waiting queue after the current holders of the Domain Names and that the Sunrise applicants that are before the Complainant in the waiting queue prima facie have a valid prior right.  \r\n\r\nComplainant has requested that the Domain Names should be transferred to him. As the Complainant is not the first in the waiting queue such request would be in violation of paragraph 11(c) of ADR Rules.\r\n\r\nConsidering the foregoing the Panel takes the view that it is not necessary to consider the other contentions of Complainant. \r\n\r\nFinally, the Panel remarks that it took notice of Respondents Challenge of Notification of Respondent Default and decided to consider the grounds set out in the challenge in this case as this has not harmed the interests of Complainant in this case. Moreover, even if Respondent would not have submitted this challenge the Panel would have come to the same conclusion. In its consideration the Panel varified if the acceptance of the challenge would conflict with Paragraph 7(b) of the ADR Rules. As set out above, the Panel did not find any facts or circumstances which should prevent the Panel from considering the challenge or that would conflict with Paragraph 7(b) of the ADR Rules.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\nthe Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-07-04 00:00:00",
    "informal_english_translation": "Complainant challenged the decisions of the Registry to award the domain names casino.eu, auto.eu, keno.eu, porn.eu, porno.eu, and bank.eu in the Sunrise period to the applicants for these domain names. Complainant contended that these domain names should have been awarded to him, and therefore Complainant requested the Panel to revoke the decisions of the Registry and transfer the domain names to Complainant.\r\n\r\n\nThe Panel first considers that the request of Complainant for revocation of the decision can only be invoked in the event Respondent is the Domain Name Holder as stipulated in Paragraph B11 (b) of the ADR Rules and therefore the Panel will not deal with this remedy sought by Complainant, since this remedy is solely available against Domain Name Holders. \r\n\r\n\nThe Panel subsequently deals with Complainant.s allegations that solely Complainant has prior rights in the domain names. Complainant shares the view that a domain name on the basis of Paragraph 10 (2) of Regulation (EC) No 874\/2004 can only be applied for if the prior right is identical to the domain name, inter alia the domain name .casino.eu. can only be applied for if a prior right exist for the complete identical name CASINO.EU. The Panel point out that Complainants understanding of a .domain name. is incorrect. The suffix ..eu., the denomination of the European Top Level Domain is no part of the domain name under the Regulation. Prior rights in a domain name consequently only relate to the wording of the domain name without the suffix ..eu.. Consequently, the Panel establishes that Complainant has no prior rights that are relevant for making a valid Sunrise claim in relation to the domain names, and therefore the Panel concludes that Complainant has no legal interest in having the decision of Respondent annulled as this would never lead to a situation in which the domain names would be transferred to the Complainant or that the Complainant in any other way would become the domain name holder. \r\n\r\nThe Panel took notice of Respondents Challenge of Notification of Respondent Default and decided to consider the grounds set out in the challenge in this case as this has not harmed the interests of Complainant in this case and considers that even if Respondent would not have submitted this challenge the Panel would have come to the same conclusion.\n  ",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}