{
    "case_number": "CAC-ADREU-001262",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a German bank.  It filed an application for the domain name <nationalbank.eu> (the “Disputed Domain Name”) on 7 December 2005.  The application was first in the queue and the documentary evidence was received by the Respondent on 13 January 2006, before the deadline of 16 January 2006.  \r\n\r\nThe documentary evidence consisted of a letter stating that the German trade mark N NATIONAL-BANK (no. 30523619.9) had been applied for by the Complainant.  The Complainant’s application was rejected by the Respondent on 3 April 2006.\r\n\r\nThe Complainant filed a Complaint against the decision of the Respondent on 15 May 2006.  The Respondent had 30 working days from the formal date of commencement of the ADR proceedings (24 May 2006) to file a Response, but failed to do so within the time period allowed.  On 17 July the Respondent did file a Response, but this was 10 days after the permitted deadline and not on the correct form prescribed by the ADR Rules.  On 27 July the Complainant filed a Reply to the Respondent’s Response.\r\n\r\nThe panel was appointed to decide the case on 1 August 2006.",
    "other_legal_proceedings": "None",
    "discussion_and_findings": "Firstly the Panel notes that the Respondent's Response was filed late and that the Complainant has filed a Reply in response.  In this regard the .EU ADR Rules provide that the Panel may decide whether or not to consider late or additional filings in its sole discretion.  In the interests of a fair hearing the Panel has decided to take the additional documents into consideration, although it would like to emphasise that nothing in either the Response or the Reply alters its decision, which would have been identical had it been decided on the strength of the Complaint alone.\r\n\r\nArticle 22(11) of the Regulation states that, in the case of a procedure against the Registry, as is the case here, the Panel must decide whether the Registry's decision conflicts with the Regulations.  The Panel must therefore decide, from a purely objective standpoint, whether the Respondent's actions were in accordance with the Regulations.  The Panel would also add that, whilst the Sunrise Rules are helpful in clarifying the meaning of the Regulations, and set down detailed procedures for applicants to follow, they are not particularly pertinent when deciding whether the Respondent's actions were in accordance with the Regulations.\r\n\r\nThe Complainant applied for the Disputed Domain Name on 7 December 2005, the first day of the Sunrise Period, and so was therefore required to demonstrate ownership of a valid prior right in accordance with Article 12(2) of the Regulation, namely a registered national or Community trade mark or a geographical indication (in view of the Complainant's status as a bank, the rules on public bodies are not relevant).  As can be seen from the documentary evidence disclosed by the Respondent, the Complainant only made reference to a trade mark application, which is not a valid prior right under the terms of Article 10(1) of the Regulation.  However, the Panel's own brief research has revealed that the German trade mark in question (N NATIONAL-BANK, Number 30523619.9) was in fact registered on 23 August 2005.\r\n\r\nThe Panel is aware that numerous prior .EU ADR decisions have focused upon the extent of the Respondent's duties when faced with defective documentary evidence.  It is therefore arguable that the Respondent, when faced with evidence of a trade mark application, should have taken two minutes to perform a search of the German trade mark register to discover that the Complainant did indeed possess a valid prior right.  However, in these particular circumstances this particular line of enquiry is not particularly relevant, as, even if the Respondent had been aware that N NATIONAL-BANK was registered, it would still have been acting in accordance with the Regulations by refusing the application.  Article 10(2) of the Regulation provides that the complete name for which the prior right exists must be reflected in the domain name applied for.  A valid application for the Disputed Domain Name would therefore need to have been supported by a registered trade mark consisting of the words NATIONALBANK or NATIONAL BANK (the first paragraph of Article 11 of the Regulation states that spaces may either be eliminated or replaced by a hyphen).  The provisions of the Regulation therefore effectively provide that the Respondent's trade mark in N NATIONAL-BANK could only have been used to apply for <nnational-bank.eu>.\r\n\r\nThe Panel would also like to point out that the second paragraph of Article 11 provides that if the name of a prior right contains special characters, spaces or punctuation marks these must be either eliminated entirely from the corresponding domain name, replaced with hyphens, or rewritten.  The third paragraph of Article 11 lists special characters and punctuation marks, but does not include hyphens.  In the Panel's view this is not an omission as the purpose of Article 11 is to set out how prior rights should be treated when they contain characters that, for technical reasons, cannot be reflected in domain names.  Hyphens can appear in domain names and so there is no need to provide special rules relating to them.  This means that, when applying Article 10(2), which provides that the complete name for which the prior right exists must be reflected in the domain name applied for, Article 11 is not relevant in this particular case.  According to the meaning of the Regulation, prior rights containing hyphen(s) can only be used to apply for domain names containing corresponding hyphen(s).  In the Panel's opinion the Complainant's detailed arguments in relation to the fact that applicants should be able to delete hyphens from prior rights when applying for domain names do not advance the Complainant's case any further, as the wording of the Regulation is clear.  The Panel is only bound to assess the Respondent's compliance with the Regulations, not whether the Regulations themselves are in accordance with Community or indeed any other law.  If the Complaint wishes to challenge the legality of the Regulations themselves then the ADR procedure is not the correct forum.    \r\n\r\nIn considering whether or not the Respondent's decision conflicts with the Regulations, it is only necessary for the Panel to consider the Respondent's actions at the time events took place.  For the Complainant to have successfully applied for the Disputed Domain Name on the first day of the Sunrise Period, it would have needed to prove that it was the holder or licensee of a registered trade mark that would have entitled it to apply for the Disputed Domain Name in accordance with the Regulation.  As demonstrated above, the Complaint does not appear to be in possession of such a trade mark.  In the Panel's view, this is the distinguishing factor between this case and Case Number 325 (ESGE) cited by the Complainant.  In ESGE the Complainant was indeed in possession of a valid prior right at the time of its application and so succeeded in its Complaint, even though the Panel was of the opinion that the Respondent's Response was valid and would have succeeded in preventing the granting of the domain name to the Complainant had it been filed in time. \r\n\r\nThe fact that the Complainant may in fact be in possession of other prior rights that may have entitled it to make a successful application at the opening of the second phase of the Sunrise Period in accordance with Article 12(2) of the Regulation is not relevant.  The Complainant has put forward quite extensive evidence to demonstrate that it is in possession of unregistered rights in the term NATIONALBANK.  If this is indeed the case, and it is not for the Panel to decide, then the Complainant should have submitted a correct application for the Disputed Domain Name on the opening of the second phase of the Sunrise Period on 7 February 2006, at which point the Disputed Domain Name was not taken.  In fact what the Complainant appears to have done is to have made another application based on the same German trade mark on 29 March 2006.  The Complainant argues that the ADR Rules do not prevent the admission of new evidence, but in the Panel's view the relevant provisions of the ADR Rules referred to are aimed at ADR proceedings brought against the registrant of a domain name, rather than the Registry, which in this case is the Respondent, where there is a clear cut off date provided for with regard to the submission of documentary evidence.  It is not for the Panel to perform the task of the validation agent retrospectively and examine new evidence relating to prior rights.  In the Panel's opinion to allow a Panel to do this would in effect be giving a Respondent a second bite at the cherry, contrary to Article 14 of the Regulation.  In any event the Complainant was unable to prove a relevant prior right in phase one of the Sunrise Period, and failed to make an application based upon its unregistered rights in NATIONALBANK during phase two.    \r\n\r\nIn this regard the Panel would point out that, in view of the sheer scale of the launch of the .EU extension, from a practical point of view it was necessary to insist that applicants complied with the relevant procedures and time periods set down in the Regulation.  In the Panel's view those applicants who failed to do so should have not have any recourse against the Respondent (in the event that the Respondent correctly applied the Regulations), and to find otherwise would be impractical.  It was not for the Respondent to correct the mistakes of applicants, as this would have been an almost infinite task. \r\n \r\nThe Panel therefore concludes that the Respondent's decision to reject the Complainant's application for <nationalbank.eu> does not conflict with the Regulations.  As the Respondent's decision is in accordance with the relevant texts, the Panel is therefore obliged to uphold it and deny the Complainant's request that the Disputed Domain Name be awarded to the Complainant.  \r\n\r\nThe Panel has also briefly observed that the next application to be considered once the ADR procedure is completed is that of an organisation referred to as LLTF, which filed an application on 6 April 2006 (the last day of the Sunrise Period) on the basis of a supposed Benelux trade mark in the term N&AT&IONALBANK.  The Panel is aware that Panels in a number of prior decisions against the registrant of a domain name have viewed the registration of trade marks containing ampersands as an indication of bad faith, see for example Case Number 475 (HELSINKI).  The Panelist would agree with this contention and observe that the Complainant may therefore have been better advised to wait until the Disputed Domain Name was registered and bring a Complaint against the registrant, in accordance with Article 21 of the Regulation.  In any case, nothing in this decision prevents the Complainant from pursuing any further remedies against any subsequent registrant of the Disputed Domain Name.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12(b) and (c) of the Rules, the Panel orders that the Complaint be denied.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-08-06 00:00:00",
    "informal_english_translation": "The Respondent's Response was filed late and the Complainant filed a Reply in response.  In the interests of a fair hearing the Panel decided to take the additional documents into consideration, although nothing in either the Response or the Reply altered its decision, which would have been identical had it been decided on the strength of the Complaint alone.\r\n\r\nThe Complainant applied for the Disputed Domain Name on the first day of the Sunrise Period, and so was required to demonstrate ownership of a valid prior right in accordance with Article 12(2) of the Regulation.  However, the Complainant only made reference to a trade mark application, which is not a valid prior right under the terms of Article 10(1) of the Regulation. \r\n\r\nIn actual fact the trade mark in question (N NATIONAL-BANK, Number 30523619.9) was registered on 23 August 2005.  However, even if the Respondent had been aware that the trade mark was registered, it would still have been acting in accordance with the Regulations by refusing the Complainant's application.  Article 10(2) of the Regulation provides that the complete name for which the prior right exists must be reflected in the domain name applied for.  A valid application for the Disputed Domain Name would therefore need to have been supported by a registered trade mark consisting of the words NATIONALBANK or NATIONAL BANK (the first paragraph of Article 11 of the Regulation states that spaces may either be eliminated or replaced by a hyphen).  The provisions of the Regulation therefore effectively provide that the Respondent's trade mark in N NATIONAL-BANK could only have been used to apply for <nnational-bank.eu>.\r\n\r\nIn considering whether or not the Respondent's decision conflicted with the Regulations, it was only necessary for the Panel to consider the Respondent's actions at the time events took place.  For the Complainant to have successfully applied for the Disputed Domain Name on the first day of the Sunrise Period, it would have needed to prove that it was the holder or licensee of a registered trade mark that would have entitled it to apply for the Disputed Domain Name in accordance with the Regulation, which did not appear to be the case.  \r\n\r\nThe fact that the Complainant may have been in possession of other prior rights that may have entitled it to make a successful application at the opening of the second phase of the Sunrise Period in accordance with Article 12(2) of the Regulation was not relevant.  If the Complainant was indeed in possession of unregistered rights in the term NATIONALBANK, then it should have submitted a correct application for the Disputed Domain Name on the opening of the second phase of the Sunrise Period, at which point the Disputed Domain Name was not taken.  \r\n\r\nIt was not for the Panel to perform the task of the validation agent retrospectively and examine new evidence relating to prior rights.  The Panel was of the opinion that to allow a Panel to do this would in effect be giving a Respondent a second bite at the cherry, contrary to Article 14 of the Regulation.  In view of the sheer scale of the launch of the .EU extension, from a practical point of view it was necessary to insist that applicants complied with the relevant procedures and time periods set down in the Regulation.  In the Panel's view those applicants who failed to do so should have not have any recourse against the Respondent (in the event that the Respondent correctly applied the Regulations), and to find otherwise would be impractical.  The Complaint was therefore denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}