{ "case_number": "CAC-ADREU-000501", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Complainant applied for the domain name < lode.eu.> on 7 December 2006 at 11.04.08.952 and for the domain name on 7 December 2005 at 11.04.36.768(the “Domain Name”) in the first part of the phased registration period. The request to register the Domain Names was based on a prior right to the names LODE and PROCARE.\r\n\r\nEURid rejected the applications to register the Domain Names because the names LODE and PROCARE were registered in the name of Lode Holding BV and not in the name of the applicant, Lode B.V.\r\n\r\nThe Complainant initially filed a Complaint in Dutch and without signed hard copies on 30 March 2006. The ADR Centre notified the Complainant of deficiencies in the Complaint and notified the Complainant and the Respondent that the deadline for filing the amended Complaint was extended until 22 May 2006.\r\n\r\nThe amended Compliant was filed on 6 April 2006 and the Response filed within time on 7 July 2006.", "other_legal_proceedings": "The Panel is not aware of any pending or decided legal procedings which relate to the disputed domain names.", "discussion_and_findings": "According to Article 10(1) of Commission Regulation (EC) No. 874\/2004 of 28th April 2004 (the “Regulation”), only the holders of prior rights recognised or established by national and\/or Community law and public bodies are eligible to apply to register domain names during the period of phased registration before general registration of .eu domain names starts (the “Sunrise Period”). Prior rights will include registered, national and Community trade marks which, pursuant to Article 14 of the Regulations, must be verifiable by documentary evidence, which demonstrates that the right exists and that applicant is the holder of the prior right claimed on the name in question. \r\n\r\nThe .eu Registration Policy and Terms and Conditions For Domain Name Applications made during that Phased Registration Period (the “Sunrise Rules”) apply to all applications made during the phased registration period. The Sunrise Rules are intended to ensure the proper, fair and technically sound administration of the phased registration period. The Validation Agent, appointed by the Registry, must verify whether the documentary evidence submitted by the applicant substantiates a prior right to the name applied for by the applicant, in accordance with the requirements for documentary evidence set out in Section 8 and Chapter V of the Sunrise Rules.\r\n\r\nThe holder and\/or licensee of a registered Community or national trade mark may make an application during the first part of the Phase Registration Period. According to section 20.1 of the Sunrise Rules, if an applicant is a licensee for a registered trade mark, in respect of which it claims a prior right, it must enclose with the documentary evidence the prescribed form of acknowledgement and licence declaration for a registered trade mark, duly completed and signed by both the licensor of the registered trade mark and the applicant (as licensee)\r\n\r\nThe documentary evidence submitted by the Complainant with its application showed that Lode Holding B.V. and not the Complainant, Lode B.V., was the owner of the brands in question. If the Complainant was a licensee of Lode Holding B.V., as the Complainant appears to assert in the Complaint, then the application for the domain name should have been accompanied by documentary evidence (in the prescribed form) of an acknowledgement and declaration for a registered trade mark, signed by both the licensor of the trade mark and the licensee, as required by Section 21 of the Sunrise Rules.\r\n\r\nSection 21.3 of the Sunrise Rules expressly states that the Validation Agent is not obliged, but is permitted in its sole discretion, to conduct it own investigations into the circumstances of the application, the prior right and documentary evidence. The burden of proof is on applicant (Complaint) to show that the applicant has a prior right (see Case No. 00127 (BPW) and Case No. 294 (COLT)). The Complainant has not provided any relevant evidence regarding the relationship between the applicant, Lode B.V. and Lode Holding B.V., the registered holder of the relevant trade marks. On the face of it Lode B.V. and Lode Holding B.V (the owner of the relevant brands) are not the same but separate legal entities.\r\n \r\nIn this case, the documentary evidence in support of the applications for the Domain Names was incomplete in respect of the requirements set out in Section 20.1 of the Sunrise Rules. The Panel accepts that the applicant should not expect the Registry or the Validation Agent to engage in its own investigations to establish the exact relationship between the registered holder of the trade mark and the applicant.", "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": "2006-08-04 00:00:00", "informal_english_translation": "EURid rejected the Complainant’s applications to register the Domain Names< lode.eu.> and because the names LODE and PROCARE were registered in the name of Lode Holding BV and not in the name of the Applicant (Complainant), Lode B.V.\r\n\r\nThe Complainant, Lode B.V, and Lode Holding B.V, the registered owner of the brands LODE and PROCARE are not the same legal entity. The documentary evidence in respect of a licence for the registered trade marks did not comply with the requirements set out in Section 20.1 of the Sunrise Rules. \r\n\r\nThe applicant should not expect the Registry or the Validation Agent to engage in its own investigations to establish the exact relationship between the registered holder of the trade mark and the applicant.", "decision_domains": [], "panelist": null, "panellists_text": null }