{
    "case_number": "CAC-ADREU-000961",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a licensee of a holder of the trade mark ESSER. He applied for the registration of the domain name esser.eu. The official certificate of the respective trade mark office was submitted as the part of the Documentary Evidence only. The EURid rejected the application for registration of the disputed domain name stating that the documentary evidence did not sufficiently prove the right claimed.",
    "other_legal_proceedings": "The Panel is not aware of any legal proceedings which relate to the disputed domain name.",
    "discussion_and_findings": "1. LEGAL GROUNDS\r\n\r\nAccording article 10 (1) of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (Public Policy Rules), the holders of prior rights and public bodies are eligible to apply to register domain names during a period of phased registration. Prior rights are understood to include, inter alia, registered national and community trademarks. According article 14 (4) of Public Policy Rules, every applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. \r\n\r\nAccording Section 13 of the .eu Registration Policy and the Terms and Conditions (Sunrise Rules) a copy of an official document issued by the competent trade mark office indicating that the trade mark is registered is sufficient to submit as a documentary evidence. This provision is not applicable in the case when the applicant is a licensee of respective trade mark. According 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 an acknowledgement and declaration form (template of such License Declaration is contained in Annex 2 of the Sunrise Rules) duly completed and signed by both the licensor and the applicant (as licensee). \r\n\r\n2. APPLICATION\r\n\r\nHoneywell SA submitted a copy of an official document issued by Deutsches Patent- und Markenamt (German Patent and Trade Mark Office) indicating that the trade mark ESSER is registered for Novar GmbH. As expressly stated in the Complaint, the Complainant is a licensee of Novar GmbH and these two companies are different bodies. The Complainant (as a licensee) had to enclose with the documentary evidence a License Declaration duly completed and signed by both the licensor (Novar GmbH) and licensee (Honeywell SA). As confirmed by EURid in Response to Complaint (and again in Nonstandard Communication from July 17, 2006, requested by the ADR Panel) the Complainant failed to submit a License Declaration with regard to the ESSER trademark with its application. The Panels in other cases (00119 – NAGEL or 00232 - DMC) stated that article 14 of the Public Policy Rules puts the burden with the applicant to prove that it holds a prior right. If an applicant fails to prove that it is the holder of a prior right, the application must be rejected.\r\n\r\nTherefore, Honeywell SA did not comply with the conditions stated in the Public Policy Rules and Sunrise Rules and EURid had to reject the application.\r\n\r\n3. ARGUMENTS OF THE COMPLAINANT\r\n\r\nAd 1) - \"There has been made a mistake by the validation agent\". \r\nAs stated above, there was no mistake of a validation agent found. The validation agent is entitled to review the submitted documents and if it finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this - see Article 14 (7) of the Public Policy Rules. In this case, the provided documentary evidence did not substantiate a prior right of an Applicant. Arguments that the validation agent made an extensive research of the provided information in other domain names registrations are not relevant in this case. The validation agent has no opportunity how to identify a licensee of a trade mark without the license agreement or declaration. In other cases mentioned by the Complainant, the additional investigations of the validation agent were limited to such kind of \"minor\" mistakes as the spelling mistakes or errors in the names. The missing document (License Declaration) cannot be considered to be such a \"minor\" mistake. Besides this, ADR Panel reviewed the website of the German Patent and Trademarks Office at https:\/\/dpinfo.dpma.de\/ as suggested by the Complainant and there is no mention of the Honeywell SA as a licensee regarding ESSER trademark.\r\n\r\nAd 2) - \"(Part of) the submitted documents were lost\". \r\nOn the basis of the ADR Panel request, EURid confirmed that the License Declaration was not provided as a part of Documentary Evidence. There are no doubts that some part(s) of documents could be lost during the process of their delivery or review. But the Complainant did not offer any evidence (e.g. copy of fax, e-mails or letters) that the License Declaration was filled to the validation agent. Moreover, despite EURid’s explicit confirmation from July 17, 2006, that the License Declaration has not been provided, the Complainant did not provide such evidence during the ADR Proceeding. \r\n\r\nAd 3) - \"The submitted documents do not meet the requirements of article 12.\" \r\nAs stated above, the only one submitted document (German Patent and Trade Mark Office certificate) did not meet the requirements of Article 12 of Public Policy Rules as it did not prove the prior right of the Applicant regarding trade mark ESSER and there was not any other document provided by the Applicant stating that the Applicant was a licensee and had the prior right to register domain name esser.eu.\r\n\r\n4. RESPONDENT‘S DEFAULT \r\n\r\nThe Respondent failed to comply with the deadline for the submission of the Response to the Complaint. \r\n\r\nThe ADR Panel emphasize that the Respondent, especially being the EURid itself, is bound by the ADR Rules and by the official terms prescribed therein like any other party. Article 4 of Regulation EC No. 733\/2002 of April 22, 2002 states very clear that “the Registry must observe the rules, policies and procedures laid down in this Regulation and the contracts referred to in Article 3”. The ADR Panel is of the opinion that the Respondent even though it has been afforded sufficient time and opportunity to respond to the Complaint, has ignored the official time limits imposed by the Rules and filed arguments lately.\r\n\r\nIt belongs to the ADR Panel, in its sole discretion, to accept or not out-of-time submissions by virtue of Paragraph 8 of ADR Rules. The ADR Panel carefully reviewed the arguments of the Respondent (contained in Response to Complaint and Nonstandard Communication from June 29, 2006) and having the above mentioned Respondent’s default in mind, decided to consider Respondent’s arguments in deciding the case from the following reasons: (1) The domain name cannot be registered in the favor of the Applicant if Applicant’s prior rights are not proved according to the Public Policy Rules and the Sunrise Rules. This conclusion cannot be affected by the late Response to Complaint. (2) Besides that the failure of the Applicant to submit License Declaration follows from the EURid’s Response to the Czech Arbitration Court Request for EURid Verification from April 27, 2006, the annex of which was the Documentary Evidence related to the disputed domain name including the official certificate of German Patent and Trade Mark Office indicating that the trade mark ESSER is registered for Novar GmbH only.",
    "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": "2006-07-13 00:00:00",
    "informal_english_translation": "The Applicant as the licensee of the holder of the trade mark ESSER applied for the registration of domain name esser.eu. The Applicant failed to submit all necessary documents related to the registration – he submitted the official certificate of the German Patent and Trade Mark Office only, but the certificate did not include anything about license or other rights of the Applicant to the respective trade mark. According 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 an acknowledgement and declaration form (License Declaration) duly completed and signed by both the licensor and the licensee. As the Applicant failed to submit the License Declaration, he did not prove his prior rights and the domain name could not be registered for him.\r\n\r\nThe argument, that the submitted documents were lost, is not relevant as the EURid expressly confirmed that the License Declaration was not provided as a part of Documentary Evidence and the Complainant did not offer any evidence that the License Declaration was really filed to the validation agent. \r\n\r\nThe arguments that there has been made a mistake by the validation agent and that the validation agent should investigate the missing information or documents are not relevant too. The validation agent is entitled to review the submitted documents and if it finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this. In this case, the provided documentary evidence did not substantiate a prior right of an Applicant. The validation agent has no opportunity how to identify a licensee of a trade mark without the license agreement or declaration. \r\n\r\nFrom all of these reasons the Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}