{
    "case_number": "CAC-ADREU-001228",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "EYE-2 B.V. (hereinafter the “Complainant”) filed applications for registration (hereafter the “Application”) of the following “.eu” domain names (hereafter the “domain names”) :\r\n-\tmylens.eu\r\n-\tmylenses.eu\r\non December 8, 2005.\r\n\r\nApplications were based on two registered Benelux nominative trademarks, respectively MYLENS (n° 0679045) of July 18, 2000 and MYLENSES (n°0950107) of November 10, 1999.\r\n\r\nOn January 12, 2006 the Complainant provided the Respondent with documentary evidence to support both applications. The documentary evidence produced within the 40 days time period set forth in article 8 (5) of the Sunrise Rules comprised certificates of registration of the trade marks on which the applications were based.\r\n\r\nHowever the alleged trade marks were actually registered in the name of a company INTERLENS B.V. which was different from the Applicant.\r\n\r\nThe Respondent rejected both applications respectively on April 8, 2006 for MYLENS.EU and April 20, 2006 for MYLENSES.EU because the documentary evidence submitted was considered insufficient to establish the prior right of the Complainant to the domain names in the sense of article 10 (1) of the Public Policy Rules.\r\n\r\nThe Complainant decided to challenge both decisions of rejection notified by the Respondent and filed a Complaint in due time, according to provisions of Article 22 (2) of the Sunrise Rules, on May 17, 2006 seeking annulment of the rejections and requesting that the domain names be granted to the Complainant.\r\n\r\nThere is no discussion on the point that the Applicant and the Complainant are the same entity.",
    "other_legal_proceedings": "No other legal proceedings related to the disputed domain names is pending or decided as far as the Panel is aware of.",
    "discussion_and_findings": "1.\tOn the admissibility of the Respondent’s argumentation\r\n\r\nThe panel notices firstly that the Respondent was found in default insofar as he did not reply to the Complaint in due time.\r\nHowever the Respondent challenged the notification of Respondent’s default issued by the Court in the 5 day period of section B3 (g) of the ADR Rules.\r\n\r\nThis section also states that in such case it belongs to the Panel in its sole discretion to accept of not arguments supporting a request to challenge the notification of Respondent’s default.\r\n\r\nThe Panel would like to refer to the following statements in ESGE case (ADR 00325): \r\n“The Panel wishes to emphasize that the Respondent, especially being in the present case the EURID itself, is bound by the ADR Rules and by the official terms prescribed therein like any other party.\r\n\r\nArticle 4 of Regulation EC No. 733\/2002 of April 22, 2002 makes it 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”.\r\n\r\nApplicants for domain name are themselves subject to official deadlines which they must necessarily comply with, save for being subject to the loss of their rights.\r\n\r\nThe Panel is of the opinion that the Respondent, even though it has been afforded sufficient time and opportunity to respond to the Complainant, has ignored the official time limits imposed by the Rules and filed arguments lately.\"\r\nIn the present case the Respondent challenged of the Notification of Respondent’s default.\r\n\r\nThe Panel notes however that the Respondent does not provide with any relevant argument to support its challenge of the Respondent’s default. Its argumentation is strictly limited to discuss the disputed rejection decisions and to motivate why the Panel should deny the Complaint.\r\n\r\nIt is the Panel opinion therefore that the Respondent’s arguments must be found inadmissible in the present proceedings.\r\n\r\n2.\tOn the merits of the Complaint\r\n\r\nIt clearly results from the case that the discussion here is to know whether the Complainant did support its applications with sufficient elements to demonstrate ownership of the trade mark on the basis of which the domain names were based, since the name of the trade mark holder differs from the name of the applicant\/complainant.\r\n\r\nSuch evidence have to be part of the documentary evidence the Applicant has to submit within 40 days after its application, as prescribed in article 14 (4) of the EC Regulation n°874\/2004.\r\n\r\nIn case the name of the Applicant differs from the holder of the alleged prior right, article 20 (3) states that “the Applicant must submit official documents substantiating that it is the same person as (…) the person indicated in the documentary evidence as being the holder of the prior right.”\r\n\r\nAt the time he submitted its documentary evidences related to both applications for the domain names MYLENS.EU and MYLENSES.EU the Complainant produced a non-official declaration of name change, on its business letterhead, stating that INTERLENS B.V. (the trade marks holder) had become EYE-2 B.V. (the Complainant).\r\n\r\nThe Panel would like to point out the fact that this declaration was only attached to its documentary evidence related to the application for MYLENSES.EU. It should also be noted that both applications had (great) chance to be examined by different Validation Agents.\r\n\r\nThe Validation Agent who examined the documentary evidence for MYLENS.EU certainly remained unaware of the declaration, so that he did not find any evidence supporting that the holder of the prior right and the Complainant were the same person.\r\nTo the Panel opinion, the notification of rejection concerning the application for MYLENS.EU does not conflict with the EC Regulations.\r\n\r\nSo did the Panel in the VIVENDI case (ADR 00551):\r\n“The documentary evidence provided by the Complainant shows that the owner of the trademark, on the basis of which the prior right to the Domain Name was asserted, is the company Vivendi, and not the Complainant (“Vivendi Universal”).  The Complainant did not provide any proof within the documentary evidence which would explain that Vivendi Universal is a legal successor (as a result of a merger or otherwise) of the company Vivendi, which was (at the time of filing of the Application) a registered holder of the Trademark.  \r\nTherefore, a conclusion must be drawn that the Complainant failed to demonstrate its prior right to the Domain Name.”\r\n\r\nAs to the documentary evidence supporting the application for MYLENSES.EU, and especially the non formal declaration of name change, the Panel examined it very carefully  to determine whether such document could satisfy the provisions of article 20 (3) of the Sunrise rules.\r\n\r\nIf the Panel is aware that the provisions of the EC Regulations n°733\/2002 and 874\/2004 should be construed as to guarantee a fair and equal treatment for any eligible applicant, it should not overcome an other  fundamental purpose as set out in Recital 12 of said Regulation 874\/2004   “to safeguard prior rights recognised by Community or national law”.\r\n\r\nTo the Panel’s mind, it would be contrary to the spirit of the Regulations and article 20 (3) of the Sunrise Rules to accept the non formal declaration provided by the Complainant as an official document supporting the alleged name change. It would have been even insecure that the Validation Agent have hold this document as official in the sense of acceptable. \r\n\r\nA document used to evidence that the holder of the prior right is the same person as the applicant should be issued by an official authority.\r\n\r\nTherefore the Panel considers the documentary evidence provided by the Complainant to support its application for MYLENS.EU was insufficient to demonstrate its prior right, and the decision to reject the application notified by the Respondent does not conflict the EC Regulations.\r\n\r\n3.\tOn the admissibility of documentation annexed to the Complaint\r\nArticle 20 (3) of the Sunrise Rules states that “the Applicant must submit official documents substantiating that it is the same person as (…) the person indicated in the documentary evidence as being the holder of the prior right.”\r\n\r\nThe Rules do not expressly require that such documents be produced at the time of the filing of the documentary evidence.\r\n\r\nIn the SCHOELLER case (ADR00253) the Panel ruled that:\r\n“It is a moot point as to whether this section places the onus on the Applicant to submit official documents at the time of the filing of the application or whether these official documents may be requested\/supplied at a later date .”\r\n\r\nSo did the Panel in the DOMAINE case (ADR 00174) and in the circumstances of the present case there is no reason to disregard these documents.\r\n\r\nThe Complainant underlines that  both companies have the same registration number. This argument is based on the supplemental evidence attached to the Complaint.\r\n\r\nHowever the main point of the \"sunrise appeal period\" ADR and the present proceedings is to know whether the disputed decisions by the Respondent to reject the applications for MYLENS.EU and MYLENSES.EU conflict with the EC Regulations.\r\n\r\nAnd the Panel has to recognize that on the basis of the evidence he was able to examine at the time he issued its decisions the Respondent did not conflict with the EC Regulations.",
    "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 Registry rejected both application for the Registration of MYLENS.EU and MYLENSES.EU on the grounds that the Applicant failed to prove it was the current holder of the alleged Prior Right.\r\n\r\nSince the difference was due to a change in its company name, the Complainant requests the rejection decisions be annulled and the domain names be granted to the Complainant.\r\n\r\nHe provides supplemental documentation with its complaint, consisting of two certificates of incorporation and an official name change document.\r\n\r\nDespite the fact he challenged the notification of the Court, the Panel finds the respondent in default and disregards its late arguments.\r\n\r\nHowever the Panel considers that the documentary evidence produced by the Complainant at the time of filing was insufficient to demonstrate its prior right, and even he later enclosed relevant documentation to its complaint, at the time the disputed decisions were issued by the Registry, they did not conflict with the EC Regulations.\r\n\r\nTherefore the Complaint is denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}