{
    "case_number": "CAC-ADREU-000382",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On March 21, 2006, the Complainant informed the Centre that it had allegedly filed the complaint against the registration of the domain TOS.EU via telefax and via post on March 17, 2006. Such fact could not be verified by the Panel.\r\n\r\nHowever, on April 10, 2006 the Complainant submitted its complaint to the Centre in electronic form. The Complainant claims that it has prior rights to the mark TOS and TOS.EU than the Registrant, Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V. The Complainant claims that the Respondent, EURid, wrongly granted the domain to Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "According to Article 10.2 of Commission Regulation (EC) No. 874\/2004 of April 28, 2004, the holders of prior rights which are recognized or established by national or Community law shall be eligible to apply to register domain names during the period of phased registration prior to the general registration of .eu domain.\r\n\r\nIn accordance with Article 14 of Commission Regulation (EC) No. 874\/2004, the Registry shall register the domain name on the first-come-first-serve basis if it finds that the applicant has demonstrated a prior right.\r\n\r\nThe purpose of Commission Regulation (EC) No. 874\/2004 is not to ascertain that the entity which holds the first right to a trademark within the Community is granted the corresponding domain, and the purpose of these ADR proceedings is not to determine whose trademark right first came into existence. \r\n\r\nThe purpose of the Regulation 874\/2004 is, inter alia, to grant domain names during the sunrise period on first come first served basis provided that the applicant can demonstrate a right which is prior to his domain name application.\r\n\r\nAccording to whois-information, the current holder of the domain www.tos.eu, i.e. Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V. (hereinafter referred to as the “Registrant”) applied for registration of the aforementioned domain on December 07, 2005 at 13:04:53.\r\n\r\nAccording to whois-information, the Complainant applied for registration of the same domain not earlier than on December 22, 2005 at 08:54:44.\r\n\r\nAccording to whois-information at whois.eu, the contested domain name was registered in favour of Registrant on March 20, 2006.\r\n\r\nThe principal obligations of the Registry regarding its decisions to register .eu domain names during phased registration are regulated by Article 14 of Commission Regulation (EC) No. 874\/2004, and especially by the last paragraph of Article 14 which states that the Registry shall register the domain name on the first-come-first-serve basis if it finds that the applicant has demonstrated a prior right in accordance with the requirements set out in Article 14.\r\n\r\nThe Registry accepted that Registrant had a prior right to the disputed domain name since it is the proprietor of a trademark consisting of the word TOS registered with the German Patent and Trade Mark Office. The existence of the respective trademark of the Registrant was not disputed by the Complainant.\r\n\r\nThe Complainant emphasized in its submission the good reputation and very old tradition of his trademark(s) compared to the trademark of the Registrant.\r\n\r\nThe Panel would like to stress that a trademark with an earlier priority right (more senior trademark) does not have priority over a more junior trademark for the purposes of the .eu domain name registration, which is primarily based on the “first come, first served” principle. As a result, the mere existence of the Complainant’s more senior trademark (or other prior right, as the case may be), that is identical to the domain name, does not necessarily constitute a bar for registration of the domain by the Respondent.\r\n\r\nAlthough the Complainant did not allege bad faith of the Registrant, such objection might be implied from its submission. The Complainant repeatedly mentioned good reputation, well-known character or good name of the said Complainant’s trademark(s), however such fact is not relevant in this case. The Panel is aware that well known denominations are often hijacked or they are subject to cyber-squatting (domain grabbing) or other malicious practices; however, bad faith under Article 21 of Commission Regulation (EC) No. 874\/2004 is not a valid ground upon which ADR proceedings against EURid could be based. Therefore, EURid's decision to grant the disputed domain name to the Registrant is not in conflict with the applicable EC Regulations. The Panel would like to stress out that it has no power to dispute the Registrant’s trademark registration as it is not the purpose of these ADR proceedings to asses whether the Registrant’s national trademark could be subject to potential revocation or invalidation.\r\n\r\nThe Complainant implicitly claims that it has an earlier trademark than the Registrant. Because the Registrant also has a valid trademark corresponding to the domain name and was the first to file the domain name application, the Respondent had correctly registered the domain name. Therefore the complaint must be denied.\r\n\r\nFor all the reasons mentioned above, the Registrant’s trademark TOS was a 'Prior Right' in accordance with the applicable provisions of Article 14 of EC Regulation No. 874\/2004. Therefore, by granting the registration of the domain name TOS.EU to the Registrant, EURid did not violate the applicable EC Regulations.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-06-26 00:00:00",
    "informal_english_translation": "The purpose of Commission Regulation (EC) No. 874\/2004 is not to ascertain that the entity which holds the first right to a trademark within the Community is granted the corresponding domain, and the purpose of these ADR proceedings is not to determine whose trademark right first came into existence. \r\n\r\nThe purpose of the Regulation 874\/2004 is, inter alia, to grant domain names during the sunrise period on first come first served basis provided that the applicant can demonstrate a right which is prior to his domain name application.\r\n\r\nThe mere existence of the Complainant’s more senior trademark (or other prior right, as the case may be), that is identical to the domain name, does not necessarily constitute a bar for registration of the domain by the Respondent.\r\n\r\nBecause the Registrant also has a valid trademark corresponding to the domain name and was the first to file the domain name application, the Respondent had correctly registered the domain name. Therefore the complaint must be denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}