{
    "case_number": "CAC-ADREU-001239",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Traffic Web Holding BV applied for the domain name PESA on January 30, 2006 and the validation agent received the documentary evidence on March 3, 2006, before March 11, 2006 deadline. The validation agent concluded that the applicant was the holder of a prior right and therefore the respondent accepted the applicant's application.  The Complainant, although it accepts that the applicant had the option to rewrite the special characters in its trademark, argues that the rewritten sign must not infringe upon another's trademark and that the applicant has registered the domain name in bad faith,",
    "other_legal_proceedings": "The Panel is not aware of other legal proceedings that are pending or decided which relate to the \"pesa.eu\" domain name",
    "discussion_and_findings": "A) Regarding the acceptance  by the Registry of the application by Traffic Web Holding BV for the domain name “PESA”:\r\n\r\nIn this Panel’s opinion, it is important to be principled in applying the relevant rules when attributing a domain name to an applicant. Rules are clear when stating in article 4 of the Regulation no. 733\/2002 of the European Parliament and of the Council the obligations of the Registry:\r\n\r\n\r\n“ 1. The Registry shall observe the rules, policies and procedures laid down in this Regulation and the contracts referred to in Article 3. The Registry shall observe transparent and non-discriminatory procedures.\r\n\r\n2. The Registry shall:\r\n(a) organise, administer and manage the .eu TLD in the general interest and on the basis of principles of quality, efficiency, reliability and accessibility;\r\n\r\n(b) register domain names in the .eu TLD through any accredited .eu Registrar requested by any:\r\n(i) undertaking having its registered office, central administration or principal place of business within the Community, or\r\n(ii) organisation established within the Community without prejudice to the application of national law, or\r\n(iii) natural person resident within the Community;\r\n\r\n(c) impose fees directly related to costs incurred;\r\n\r\n(d) implement the extra-judicial settlement of conflicts policy based on recovery of costs and a procedure to resolve promptly disputes between domain name holders regarding rights relating to names including intellectual property rights as well as disputes in relation to individual decisions\r\nby the Registry. This policy shall be adopted in accordance with Article 5(1) and take into consideration the recommendations of the World Intellectual Property Organisation. The policy shall provide adequate procedural guaranties for the parties concerned, and shall apply without prejudice to any court proceeding; \r\n\r\n(e) adopt procedures for, and carry out, accreditation of .eu Registrars and ensure effective and fair conditions of competition among .eu Registrars;\r\n\r\n(f) ensure the integrity of the databases of domain names.”\r\n\r\n\r\nMoreover, article 10 of the Commission Regulations (EC) no 874\/2004, regarding the eligible parties and the names they can register states that: \r\n\r\n“1. Holders of prior rights recognized or established by national and\/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of. eu domain starts.\r\n\"Prior rights\" shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works.\r\n\"Public bodies\" shall include: institutions and bodies of the Community, national and local governments, governmental bodies, authorities, organisations and bodies governed by public law, and international and intergovernmental organisations.\r\n2. The registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists.\r\n3. The registration by a public body may consist of the complete name of the public body or the acronym that is generally used. Public bodies that are responsible for governing a particular geographic territory may also register the complete name of the territory for which they are responsible and the name under which the territory is commonly known”.\r\n\r\nHowever, it is this Panel’s opinion that the Registry’s decision does not breach at all any of these articles’ provisions. \r\n\r\nTraffic Web Holding BV (hereinafter, “the Applicant”) applied for the domain name PESA on January 30, 2006 and delivered documentary evidence on March 3, 2006 (before the deadline, i.e. before March 11, 2006). \r\n\r\nThe order of priority set out in article 4(2) as in article 10(1) above has fully been taken into account by the Registrar. \r\n\r\nThe Registry was attributed to Traffic Web Holding  BV, an earlier applicant in the queue of candidates applying for the same domain name. Article 14 of the Commission Regulations (EC) no 874\/2004 clearly states that the first application in line must be considered first by the validation agent if certain requirements are met. In effect, the validation agent concluded from documentary evidence that the Applicant was the holder of a prior right and that is why Eurid (hereinafter, “the Respondent”) accepted the Applicant’s application.  \r\n\r\nThis same article mentions the effects of the first-come-first-served principle. \r\n\r\nIt’s undisputable that Traffic Web Holding BV was the first in line for the PESA domain name, that documentary evidence was received in time and that it’s the holder of a prior right. \r\n\r\nFor these reasons I consider that the Complainant’s arguments are not overwhelming enough so as to revoke the Registry’s decision.\r\n \r\nB) Regarding the Complainant’s contentions and Respondent’s response:\r\n\r\nThe Claimant argues that Eurid’s decision violates art. 10.2 of the Commission Regulation (EC) 874\/2004 above referred. \r\n\r\nIt mentions as well art. 11 of the Commission Regulation (EC) 874\/2004 regarding the use of special characters in a domain name. The Complainant openly accepts that the Applicant had the option to rewrite the special characters in its trademark but argues that one is not free to choose how to rewrite a special character and states that the rewritten sign must not infringe upon another’s trademark. The Complainant argues as well that the Applicant has registered the domain in bad faith. \r\n\r\nIt’s upon these arguments that the Claimant is requesting the Panel to annul the Respondent’s decision and also that the domain name be transferred to him.\r\n\r\nThis Panel deems accurate to bring art. 11 of the Commission Regulation (EC) 874\/2004 up regarding certain special characters, such as the ampersand. Said article provides some options to come around that dilemma, like for example rewriting the sign. In the case herein, indeed the Applicant chose to rewrite the ampersand, rather than eliminating it or replacing it with a hyphen. The applicant did this by using the word “ES” (it means “and” in Hungarian) and is a correct way to rewrite an ampersand, as the Respondent argues. Indeed, as the Respondent points out there is no rule limiting an applicant to rewrite the special character in a particular language. \r\n\r\nThe Respondent in fact mentions recitals 6 and 7 of Regulation 733\/2002 about the .eu TLD arguing that through it the internal market should acquire higher visibility in the virtual market place based on the Internet and that it can accelerate the benefits of the information society in Europe as a whole, play a role in the integration of future Member States into the European Union, and help combat the risk of digital divide with neighbouring countries. \r\n\r\n\r\nC) Alleged trademark infringement\r\n\t\t \r\nThis Panel believes that the reasons given by the Complainant referring to an eventual Traffic Web Holding BV infringement of its PESA trademark given the way it chose for rewriting the ampersand are not conclusive at all.\r\n\r\nNot in vain the Respondent notes that the validation agent is only concerned with appreciating domain name applications but not trademarks. Moreover, they are indeed the Trademark Offices and the competent Courts the ones empowered to rule on trademarks. \r\n\r\nAs the Respondent points out, the validation agent cannot be expected to appreciate a trademark as this may lead to arbitrary decisions and may have an adverse effect in the trademark system. \r\n\r\n\r\nD) Alleged application in bad faith \r\n\r\nOne sole reason has been given by the Complainant referring to an eventual Traffic Web Holding BV trademark application in bad faith.  It was not consistent enough. This Panel considers that the reason given by the Complainant does not constitute in itself legal ground so as to reject an application for a domain name on the presumption that the application may have been made in bad faith.  In fact, to this regard this Panel must bring up that there is no obligation under the Regulation for the Respondent to assess the bad faith of the applicant. They are clear in article 22(1) of the Commission Regulations (EC) no 874\/2004 the reasons why a decision taken by the Respondent can be annulled: \r\n\r\n“An ADR procedure may be initiated by any party where:\r\n\r\n(a) the registration is speculative or abusive within the meaning of Article 21; or\r\n(b) a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733\/2002”.\r\n\r\nOn the one part, in no way one can affirm that the Registry’s decision was speculative or abusive within the meaning of article 21. \r\n\r\nOn the other part, it’s patent in article 21(3) how a conduct in bad faith may be demonstrated: \r\n\r\n3. Bad faith, within the meaning of point (b) of paragraph 1 may be demonstrated, where:\r\n(a) circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name to the holder of a name in respect of which a right is recognized or established by national and\/or Community law or to a public body; or\r\n(b) the domain name has been registered in order to prevent the holder of such a name in respect of which a right is recognized or established by national and\/or Community law, or a public body, from reflecting this name in a corresponding domain name, provided that:\r\n(i) a pattern of such conduct by the registrant can be demonstrated; or\r\n(ii) the domain name has not been used in a relevant way for at least two years from the date of registration; or\r\n(iii) in circumstances where, at the time the ADR procedure was initiated, the holder of a domain name in respect of which a right is recognized or established by national and\/or Community law or the holder of a domain name of a public body has declared his\/its intention to use the domain name in a relevant way but fails to do so within six months of the day on which the ADR procedure was initiated;\r\n(c) the domain name was registered primarily for the purpose of disrupting the professional activities of a competitor; or\r\n(d) the domain name was intentionally used to attract Internet users, for commercial gain, to the holder of a domain name website or other on-line location, by creating a likelihood of confusion with a name on which a right is recognized or established by national and\/or Community law or a name of a public body, such likelihood arising as to the source, sponsorship, affiliation or endorsement of the website or location or of a product or service on the website or location of the holder of a domain name; or\r\n(e) the domain name registered is a personal name for which no demonstrable link exists between the domain name holder and the domain name registered.\r\n\r\nFor all the above, this Panel affirms that in fact neither any of the above circumstances has been listed by the Complainant nor it has been properly proved that the Applicant has registered the domain name in bad faith. \r\n\r\nThis Panel considers that of course the burden of proof lies on the Complainant when affirming that the applicant acted in bad faith. It is the latter who must furnish the relevant arguments and proofs to make it clear that the Registry’s decision was taken as a result of the applicant’s acting in bad faith. \r\n\r\nYet, in the case of a speculative and abusive registration, ADR proceedings must be initiated against the domain name holder itself and not the Respondent.\r\n\r\nThe fact of the Applicant registering many popular names cannot be a conclusive proof that he is truly acting in bad faith, since he has the right to apply for as many domain names as he wants. Whoever adopts such a stand must be consistent and provide all indisputable evidences needed so as to emphatically affirm there has been bad faith in his acting.\r\n\r\nThis Panel believes that the only evidence that has been provided is not therefore conclusive at all. \r\n\r\nAll the above leads this Panel to keep the Registry’s decision up and consequently reject the Complaint.",
    "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": "2006-08-08 00:00:00",
    "informal_english_translation": "A) Regarding the acceptance  by the Registry of the application by Traffic Web Holding BV for the domain name “PESA”:\r\n\r\nIn this Panel’s opinion, it is important to be principled in applying the relevant rules when attributing a domain name to an applicant. Rules are clear when stating in article 4 of the Regulation no. 733\/2002 of the European Parliament and of the Council the obligations of the Registry. Moreover, article 10 of the Commission Regulations (EC) no 874\/2004, is clear regarding the eligible parties and the names they can register. In this Panel’s opinion the Registry’s decision does not breach at all any of these articles’ provisions. Traffic Web Holding BV (hereinafter, “the Applicant”) applied for the domain name PESA on January 30, 2006 and delivered documentary evidence on March 3, 2006 (before the deadline, i.e. before March 11, 2006), and the order of priority set out in the above referred articles 4has fully been taken into account by the Registrar. \r\n\r\n \r\nB) Regarding the Complainant’s contentions and Respondent’s response:\r\n\r\nThe Claimant is requesting the Panel to annul the Respondent’s decision and also that the domain name be transferred to him.\r\n\r\nThis Panel deems accurate to bring art. 11 of the Commission Regulation (EC) 874\/2004 up regarding certain special characters, such as the ampersand. Said article provides some options to come around and the one chosen by the Applicant of rewriting the sign was proper. and allowed by the relevant rules.\r\n\r\nC) Alleged trademark infringement\r\n\t\t \r\nThis Panel believes that the reasons given by the Complainant referring to an eventual Traffic Web Holding BV infringement of its PESA trademark given the way it chose for rewriting the ampersand are not conclusive at all. It's also important to remind that the validation agent is only concerned with appreciating domain name applications but not trademarks and that they are the Trademark Offices and the competent Courts the ones empowered to rule on trademarks. \r\n\r\nD) Alleged application in bad faith \r\n\r\nThis Panel considers that the reason given by the Complainant does not constitute in itself legal ground so as to reject an application for a domain name on the presumption that the application may have been made in bad faith. Bad faith has not been demonstrated and the burden of proof lies on the Complainant when affirming that the applicant acted in bad faith. The latter has not furnished the relevant arguments and proofs to make it clear that the Registry’s decision was taken as a result of the applicant’s acting in bad faith.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}