{
    "case_number": "CAC-ADREU-001186",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "During the Sunrise Period I, the Complainant (then the Applicant) applied for registration of the domain “erdgas.eu”. The Complainant supported its application with a certified copy of its German Trade Mark registration for the word mark “Erdgas” (the Trade Mark”). Importantly, the Trade Mark registration certificate was in the name of “Ruhrgas Aktiengesellschaft” whereas the name of the Applicant was shown as “E.ON Ruhrgas AG”.\r\n\r\nThe Complainant maintains that it also filed with its application an Essen Court extract (the ‘Extract’) which documented the Applicant’s previous change of name from Ruhrgas Aktiengesellschaft to E.ON Ruhrgas AG. The Respondent denies that the Extract was ever received. \r\n\r\nIt is not disputed that the Applicant was, in fact, the legal entity which owned the said Trade Mark registration.",
    "other_legal_proceedings": "I am unaware of any other legal proceedings related to the disputed domain name",
    "discussion_and_findings": "Despite requests, the Complainant has not been able to prove that the Extract was ever filed with the application or within the relevant timeframe. Had they been able to do so, this decision would have had to favour the Complainant. However, in their response to a request for evidence of the submission of the Extract, the Complainant was of the view that even if it had not filed the Extract it was nevertheless entitled to registration of the erdgas.eu domain. Given the Complainant’s position and in view of the fact that the Complainant has not been able to prove that the Extract was submitted, I must proceed on the basis that the Extract was never submitted.\r\n\r\nThe key issue concerns the difference between the name shown on the Trade Mark certificate and that shown on the application ( i.e. “Ruhrgas Aktiengesellschaft” as opposed to “E.ON Ruhrgas AG”).\r\n\r\nThe Complainant relies on Article 10 of the Commission Regulation No. 874\/2004 which it maintains entitles it to registration of the erdgas.eu domain by virtue of the fact that the applicant was the actual owner of the trade mark.\r\n\r\nHowever, Article 10(1) simply states that holders of prior rights “shall be eligible to apply to register domain names..”, such that this Article gives rise to a right to apply (which the Complainant duly exercised) rather than an automatic right to registration. This principle is also reflected in the preamble to the same Regulation, which refers to giving the holders of prior rights the “opportunity” to register the names in which they hold rights. \r\n\r\nI therefore reject the Complainant's submission that Article 10 alone was sufficient to entitle the Complainant to registration of the erdgas.eu domain.\r\n\r\nIn the same Regulation (No. 874\/2004) the standards for applications are referred to in Articles 14(1) and 14(4) which state, respectively, that “claims for prior rights under Articles 10(1) and 10(2) must be \"verifiable by documentary evidence” and that “Every applicant shall submit evidence that he or she is the holder of the prior right claimed on the name in question”. From this it seems plain that the onus of proof is on the applicant and that the duty extends to showing that they are the holder of that right.\r\n\r\nThis view is further evidenced in the Sunrise Rules. Section 13(2) states that the documentary evidence submitted must “clearly evidence that the Applicant is the reported owner of the registered trade mark”. Section 4(1)(iii) states that the documentary evidence should be “..complete, accurate, up-to-date..”\r\n\r\nThe Complainant was aware, or should have been aware, of these requirements at the point of filing its application and in my view has failed to demonstrate in the documentary evidence submitted that it, the then applicant, was the owner of the prior right claimed. I am conscious that the Regulations and the Rules make reference to the applicant and do not qualify that as meaning the actual underlying legal entity, which is the interpretation the Complainant would seem to prefer. The documentary evidence submitted was incomplete and was out of date.  \r\n\r\nIt appears that at the time of the application the Complainant was the owner of a number of trade mark registrations for various \"erdgas\" marks and it submitted evidence of these with its Complaint. These marks all appear to show the Complainant (i.e. E.ON Ruhrgas AG) as the owner of these marks but as this information was first submitted in the course of these ADR proceedings, they are not relevant to the application filed by the Complainant.\r\n\r\nThe Complainant has not raised the issue of the conduct of the validation agent in their Complaint, so I do not feel bound to consider this. Nevertheless, I think it is worth briefly considering the role of the validation agent. Section 21(2) of the Sunrise Rules states that the validation agent shall base their examination of prior rights “..exclusively on the basis of a prima facie review of the first set of Documentary Evidence received..” and Section 21(3) makes it clear that the validation agent has no obligation to conduct its own investigations into the circumstances of the application.\r\n\r\nIn the circumstances, and bearing in mind the duty of the validation agent to try to ensure that the applicant, as shown on the application, demonstrates the appropriate ownership of the prior right, I am of the view that the validation agent in this case was not presented with documentary evidence which on a prima facie review demonstrated the right of the applicant to ownership of the Prior Right. As to whether they should have carried out further investigations, I am conscious that this is specifically called out in the Rules as not being an obligation and to be done in their sole discretion. In the circumstances of this case, I do not consider that the validation agent acted so unreasonably as to justify overriding the exercise of that discretion.",
    "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": "2006-08-11 00:00:00",
    "informal_english_translation": "The Complainant has not been able to prove that an Essen Court extract was ever filed with the application or within the relevant timeframe and I must therefore proceed on the basis that the extract was never submitted.  The absence of the extract creates a difference between the name shown on the Trade Mark certificate and that shown on the application ( i.e. “Ruhrgas Aktiengesellschaft” as opposed to “E.ON Ruhrgas AG”).\n  \r\n  \r\n  The Complainant relies on Article 10 of the Commission Regulation No. 874\/2004 which it maintains entitles it to registration of the erdgas.eu domain by virtue of the fact that the applicant was the actual owner of the trade mark.  However, I consider that Article 10(1) gives rise to a right to apply (which the Complainant duly exercised) rather than an automatic right to registration. I therefore reject the Complainant's submission that Article 10 alone was sufficient to entitle the Complainant to registration of the erdgas.eu domain.\r\n\r   \nI further consider that Articles 14(1) and 14(4) of Regulation No. 874\/2004 place the onus of proof on the applicant and that the duty extends to showing that they are the holder of the prior right. This view is further evidenced in the Sunrise Rules, section 13(2) and section 4(1)(iii). The Complainant was aware, or should have been aware, of these requirements at the point of filing its application and in my view has failed to demonstrate in the documentary evidence submitted that it, the then applicant, was the owner of the prior right claimed. The documentary evidence submitted was incomplete and was out of date.\r\n\r     \nIn the circumstances, and bearing in mind the duty of the validation agent to try to ensure that the applicant, as shown on the application, demonstrates the appropriate ownership of the prior right, I am of the view that the validation agent in this case was not presented with documentary evidence which on a prima facie review demonstrated the right of the applicant to ownership of the Prior Right. As to whether they should have carried out further investigations, I am conscious that this is specifically called out in the Rules as not being an obligation and to be done in their sole discretion. In the circumstances of this case, I do not consider that the validation agent acted so unreasonably as to justify overriding the exercise of that discretion.\n",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}