{
    "case_number": "CAC-ADREU-000642",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a Dutch national who is trading under the name “Southern Cross”. The Complainant is further owner of a prior national right, namely the Benelux trademark No 740 428 for the word CRUX. Confusion has arisen regarding the question who in fact filed the application, i.e. whether the application was filed by a natural person, Mr Bipin Taneja, or whether the application was filed by a trade entity Southern Cross. Another issue is the fact that the application contained the name of Mr Bipin Taneja as the holder of the prior right, on which the application was based; thus, there was a difference in the name of the entity requesting the registration of the CRUX.EU domain name, and the entity who was stated in the application as applicant and owner of prior right. \r\n\r\nThe application for registration of the CRUX.EU domain name was rejected by the Respondent and this decision is subject of the complaint, by which the Complainant seeks the attacked decision be annulled and the domain name CRUX.EU be registered in his name.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceeding connected to the disputed domain name CRUX.EU. No such information was obtained from the parties and the Panel is not entitled to make any own investigations.",
    "discussion_and_findings": "(i) Late submissions of the Parties \r\n\r\nThe Respondent filed his response after the expiry of the deadline set by the Case Administrator. Under the ADR.eu rules, it is up to the Panel to decide whether such response filed in default will be considered by the Panel in the decision making, or not. \r\n\r\nThe Panel finds it appropriate to point to the Respondent’s argumentation as used in his response that  the validation of the applications can only be managed if strict rules are complied with and that a process can only be managed when strict rules are applied and complied with (stressed by the Panel). \r\n\r\nThe Panel sees a certain discrepancy in the Respondent’s approach to applicants asking for registration of EU domain names, where a quite strict approach is applied, and to the Respondent’s attitude in this proceeding, where apparently a late response of the Respondent should be admitted and the Respondent does not worry about it. \r\n\r\nNevertheless, the Panel decided to take into consideration all submissions made by the Parties in this proceeding. The ADR process should be conducted in a quick manner and no serious procedural or material reasons not to consider late submissions of the Respondent were found by the Panel in this concrete case. As the Panel accepted late submissions of the Respondent, the Panel decided to accept also respective procedural responses of the Claimant; other procedure could lead to unjust treatment of the Parties and thus to unfair trial. \r\n\r\n(ii) Legal assessment of the case \r\n\r\nIt is obvious to the Panel that the Complainant, being a Dutch natural person is trading under the name of “Bipin Taneja\/Southern Cross”, or “Bipin Taneja – Southern Cross.” This is evidenced by the extract from the respective Dutch companies register issued by the Chamber of Commerce, district of Hague. \r\n\r\nRegardless whether the Panel can give a precise assessment of the legal situation of use of names of entrepreneurs under Dutch law or not, it is clear from the extract issued by the Chamber of Commerce in Hague that the Complainant is entitled to perform legal acts and to trade under the name of Bipin Taneja in connection with Southern Cross. \r\n\r\nIt ensues from the documentary evidence as presented by the Complainant, which was not disputed in any way by the Respondent that the application for the registration of the CRUX.EU domain name was filed in the name of Southern Cross Bipin Taneja, from the organization of Southern Cross. \r\n\r\nIt further ensues from the documentary evidence presented to the Panel that the relevant proof of prior right, i.e. the BENELUX trademark No 740 428 CRUX owned by Mr Bipin Taneja was presented to the Respondent. \r\n\r\nThe Panel is well aware of the problems with the application form and the unclear legal terms used in it. In fact the application form can in many cases lead to confusion of normal and standard applicants, but also to confusion of experienced users of the system, such as internet service providers. The purpose of the registration process is to enable the users to obtain EU domain name on a possibly smooth basis, taking into account their prior rights, where applicable.  \r\n\r\nThe issue is whether the acquisition of rights (based even on prior rights) in the European Union will depend on the question of whether the applicant has filled in correctly a form, or whether such acquisition will depend on sound and thorough assessment of the filings of the applicants, based on communication with the applicants. \r\n\r\nThe Panel shall not use any automated processes and the Panel is of the opinion that current legal rules governing the registration process of EU domain names contain sound provisions, which could have been used by the Respondent during the registration process. \r\n\r\nReference is made, among others, to Recital 12 of the Regulation 874\/2004, under which the aim of the registration process is to ensure that holders of prior rights have appropriate opportunities to register names on which they hold prior rights. It further follows from this recital that validation agents should assess rights claimed for a particular name properly. Reference is further made to Article 14 of the Regulation No 874\/2004, under which the validation agent should examine the application. \r\n\r\nUnder Sunrise Rules, Article 21.3, the validation agent may, at his own discretion, conduct investigation into the circumstances of the respective application. \r\n\r\nThe Panel appreciates the high number of application received and processed by the Respondent, and the Panel also understands the tendency of the Respondent to apply those automated processes as mentioned in the Respondent’s response to the Complaint. The respective legal provisions cited above put the Respondent under clear legal obligation to examine the application (Art. 14 of the Regulation 874\/2004) and to assess the respective right of the applicant (recital 12 of the Regulation 874\/2004. \r\n\r\nIn the opinion of the Panel, these obligations to examine  and assess are clearly in conflict with the absolute idea of an uncompromised automated process. \r\n\r\nThe Panel should, under the ADR, however provide the necessary corrections to procedures and decisions of the Respondent, where the facts of the case allows so, and where such procedure is admissible under the ADR Rules and the respective legal provisions governing the registration process. \r\n\r\nIn the present case, it is obvious that the application for registration of the CRUX.EU domain name was filed in good faith by Mr Bipin Taneja.  The mistake in the application form, which is in the opinion of the Panel not due to bad understanding of the Complainant or due to his lack of understanding of any explanatory notes, cannot be construed to the detriment of the Complainant (the Applicant). \r\n\r\nIt was within the powers and possibilities of the Respondent to ask the Complainant for explanation of the names used in the application form and the Respondent could have proceeded in compliance with the above mentioned legal provisions. \r\n\r\nThe Respondent decided, within his discretionary power, not to do so during the registration proceeding. \r\n\r\nThe Panel in his position decided, after having considered the arguments of the Parties and the presented documentary evidence to provide for the necessary correction of the procedure of the Respondent. \r\n\r\nBefore the verdict of the Panel is handed down, the Panel would like to express its understanding for the opinion as express by the panel in case No 219 that one really could argue that sympathy is overruled by the applicable regulations serving among other purposes the (cost-effective) functionality of the phased registration and the principles hereof, however the Panel is convinced that justice may not be overruled either by sympathy or by cost-effective functionality, notwithstanding the fact that justice may not depend on the question how one fills in a registration form, which in itself is quite confusing.",
    "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 EURID's decision be annulled and \r\n\r\nthe domain name CRUX be registered in the name of the Complainant.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-08-30 00:00:00",
    "informal_english_translation": "The Complainant is a Dutch national\/natural person trading under the name “Southern Cross”. The Complainant is owner of a prior national right, i.e. the Benelux trademark No 740 428 CRUX. Confusion has arisen regarding the question who in fact filed the application, i.e. whether the application was filed by a natural person, Mr Bipin Taneja, or whether the application was filed by a trade entity Southern Cross. The application for registration of the CRUX.EU domain name was rejected by the Respondent and this decision is subject of the complaint, by which the Complainant seeks the attacked decision be annulled and the domain name CRUX.EU be registered in his name. \r  \n\r  \nThe issue of the proceeding was whether the acquisition of rights in the European Union will depend on the question of whether the applicant has filled in correctly a form, or whether such acquisition will depend on sound and thorough assessment of the filings of the applicants, based on communication with the applicants, based on assessment of the respective legal rules governing the registration process. The Panel referred to, among others, Recital 12 of the Regulation 874\/2004, under which the aim of the registration process is to ensure that holders of prior rights have appropriate opportunities to register names on which they hold prior rights. The Panel concluded from this recital that validation agents should assess rights claimed for a particular name properly. Reference is further made to Article 14 of the Regulation No 874\/2004, under which the validation agent should examine the application. \r\n\r\nThe Panel concluded that the obligations imposed upon the Respondent to examine and assess are clearly in conflict with the absolute idea of an uncompromised automated process. ",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}