{
    "case_number": "CAC-ADREU-001323",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant submitted the application for registration (hereinafter the “Application”) of the .eu domain name “7x4med.eu” (hereinafter the “Domain Name”) on 20 December 2005.  The Application ranked no. 1 and no other applications for registration of the Domain Name were filed in Sunrise 1 or Sunrise 2. \r\n\r\nThe Application was based on the following prior rights within the meaning of Article 10 (1) of the Commission Regulation No. 874\/2004 (hereinafter “Public Policy Rules”):\r\n\r\n(a)\tGerman national trademark “7x4med”no. 30437289;\r\n(b)\tInternational trademark “7x4med” no. 839334; and\r\n(c)\tCommunity trademark “7x4 med” no. 003916574\r\n\r\nThe deadline for filing the documentary evidence pursuant to Article 14 of Public Policy Rules was 29 January 2006 and the Complainant submitted documentary evidence on 20 January 2006 and thus within the said deadline. The documentary evidence consisted of:\r\n\r\n(i)\tCertificate of Registration issued by German Patent and Trademark Office for the German national trademark “7x4med” reg. no. 30437289;\r\n(ii)\tCertificate of Registration of Community trademark “7x4 med” reg. no. 003916574 issued by Office for Harmonization in the Internal Market (OHIM); and\r\n(iii)\tCertificate of Registration of the international trademark “7x4med”, reg. no. 839334 issued by World Intellectual Property Organization (WIPO).\r\n\r\nAccording to the certificates (i) and (iii) above the company assist Pharma GmbH with its seat at Im Holzau 8, D-66663 Merzig, Germany, is the owner of the German national trademark “7x4med” and international trademark “7x4med”. The name of the trademark owner is not shown on the scanned version of the certificate (ii) above provided to the Panel (or it is illegible), however, from the online database of Community trademarks maintained by OHIM it appears that assist Pharma GmBH is the owner of the Community trademark “7x4 med” as well. \r\n\r\nBy its decision dated 5 April 2006 (hereinafter the “Decision”) the Respondent rejected the Application because the documentary evidence as provided by the Complainant was considered insufficient to demonstrate the Prior Right of the Complainant to the Domain Name within the meaning of Article 10 (1) of the Public Policy Rules. \r\n\r\nOn 12 May 2006 and thus within Sunrise Appeal Period as defined by Sunrise Rules the Complainant filed the complaint against the Decision, subsequently amended on 29 May 2006 (hereinafter the “Complaint”) seeking “setting aside” of the Decision and “approval of the registration of the Domain Name in the name of the Complainant”.  \r\n\r\nThe Respondent submitted its response to the Complaint on 18 July 2006 (hereinafter the “Response”) and thus within the deadline as stipulated by Paragraph B3 (a) of the ADR Rules.",
    "other_legal_proceedings": "The Panels is not aware of any such proceedings.",
    "discussion_and_findings": "The Panel concurs with the Respondent. \r\n\r\nAccording to Article 10 of the Public Policy Rules only an applicant who is able to demonstrate a prior right to a domain name is eligible for registration of such domain name in Sunrise Period.\r\n\r\nAccording to Article 14 of the Public Policy Rules every applicant shall submit the documentary evidence that shows he or she is the holder of the prior right claimed on the domain name in question. This requirement is further specified with respect to each type of prior rights by Sunrise Rules.  If the prior right is based on a trademark, the applicant must provide the documentary evidence according to the requirements set forth in Section 13 (2) (i) or (ii) of the Sunrise Rules. \r\n\r\nSection 20 of the Sunrise Rules sets forth additional requirements the applicant must meet in the event that the documentary evidence (such as trademark registration certificates) shows that the registered owner of the prior right is different from the applicant. If the applicant is a licensee of the trademark on the basis of which the prior right is claimed, it must submit an acknowledgement and declaration form according to the template forming Annex 2 of the Sunrise Rules, duly completed and signed by licensor and the applicant (Section 20 (1) of the Sunrise Rules).  Similar requirements apply in cases where the applicant is different from the holder of the prior right in question as shown on the documentary evidence due to the transfer of the prior right, merger, or other reasons (Section 20 (2) and (3) of the Sunrise Rules).\r\n\r\nAccording to Section 21 (1) (ii) of the Sunrise Rules, the validation agent shall verify whether the requirement for the existence of the prior right to the domain name claimed by the applicant is fulfilled. According to Section 21 (2) the validation agent examines whether the applicant has a prior right to the domain name in question on the basis of prima facie review of the first set of documentary evidence received.  According to Section 21 (1) in fine of the Sunrise Rules, the validation agent and the Respondent are not obliged to notify the applicant if the requirement to sufficiently demonstrate the prior right to a domain name is not complied with. \r\n\r\nThe documentary evidence provided by the Complainant shows that the registered owner of the trademarks on the basis of which the prior right to the Domain Name was asserted is the company assist Pharma GmbH and not the Complainant. The Complainant did not provide any document within the documentary evidence which would demonstrate Complainant’s right to the trademarks in question.  Therefore a conclusion has to be drawn that the Complainant failed to demonstrate its prior right to the Domain Name.  The additional documents provided by the Complainant in the course of these ADR proceedings cannot be taken into consideration, as they did not form part of the documentary evidence. \r\n\r\nThe Complainant, on one hand, argues that it was not obligated to provide the documentary evidence as to its right to aforesaid trademarks because such right is not based on a license agreement, but rather on “group internal authority”.  On the other hand the Complainant argues that the validation agent was obligated to investigate as to why the registered owner of the said trademarks as shown on the documentary evidence provided by the Complainant is different entity than the Complainant.  Such argumentation of the Complainant is apparently purpose-built and cannot stand.\r\n\r\nGenerally, throughout the world, domain names have always been registered on “first come first serve” principle without having specific regard to the rights of the owners of intellectual property.  The European Community, having regard to legitimate interests of the intellectual property right owners, provided such owners with the opportunity of privileged registration of the domain name corresponding to their intellectual property rights in the Sunrise Period.   In order to administer such a tremendous task it was absolutely necessary to establish strict and straightforward rules for demonstrating of the intellectual property rights on which the privileged registration of domain names should be based.  These strict rules are without any doubt justified and necessary in situation when hundreds of thousands of applications for registration of the domain names in the Sunrise Period had to be examined.  Nothing in these rules stipulates the obligation of the validation agent or the Respondent to investigate into the circumstances of the applications where the prior right was not sufficiently demonstrated, or the obligation of the validation agent or the Respondent to notify applicants of deficiencies in their applications.  Quite to the contrary, Section 21 (1) and (2) of the Sunrise Rules expressly stipulate that the validation agent and the Respondent shall not have any such obligations.  The Complainant tries to construe such obligations of the validation agent and the Respondent by invoking the general principles of phased registration such as “safeguarding of the trademarks’ owners rights” and “avoiding speculative and abusive domain registrations”.  In fact, these principles can only be fulfilled by setting forth strict rules for demonstrating of prior rights otherwise the phased registration would not be manageable.  Therefore, it cannot be reasonably anticipated that the validation agent (although it has the permission to do so pursuant to Section 21 (3) of the Sunrise Rules) would investigate into the circumstances of each and every domain name application where the documentary evidence submitted by the applicant does not comply with the requirements set forth by Sunrise Rules.\r\n\r\nIn the light of the foregoing it has to be concluded that it is the responsibility of the domain name applicant to provide documentary evidence in a manner that its prior right to the domain name applied for is clearly demonstrated. Should the documentary evidence show that the registered owner of the prior right is different from the applicant, the documentary evidence must include appropriate documents demonstrating applicant’s authorization to register the domain name on the basis of the asserted prior right, regardless of whether such authorization is named “license” or anyhow else.  If such documents are not provided by the applicant, the validation agent, exercising prima facie review of the documentary evidence pursuant to Section 21 (2) of the Sunrise Rules may (and most likely will) conclude that the prior right of the applicant to the domain name is not demonstrated and thus reject the domain name application.\r\n\r\nThe Complainant’s speculations as to the possibility of abusive or speculative registration of the Domain Name are not relevant for these ADR proceedings.  In accordance with Section 22 (6) of the Public Policy Rules the Domain Name remains suspended until these ADR proceedings or subsequent legal proceedings are complete, after that it will be released for Landrush registration.  If the Complainant intended to register the Domain Name immediately at the beginning of Landrush period it should not have initiated these ADR proceedings.",
    "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": "2006-07-24 00:00:00",
    "informal_english_translation": "The Complainant applied for a domain name 7x4med.eu on the basis of registered trademarks, which are, according to the documentary evidence provided by the Complainant, owned by different entity than the Complainant.  In the documentary evidence the Complainant did not provide any of the Documents required by Section 20 of the Sunrise Rules that would demonstrate its authorization to register the domain name on the basis of the said trademarks, arguing, that it was not obligated to do so as its authorization to use these trademarks was not based on license agreement but rather on “group internal authority”.  With its complaint the Complainant provided several documents in demonstration of this authority, however, these documents were not part of the documentary evidence.  The Complainant also argued that the validation agent in fact was obligated to investigate into the said deficiency of Complainant’s domain name application.\r\n\r\nThe Panel held that the Complainant apparently failed to demonstrate the prior right to the claimed domain name in compliance with the requirements of Public Policy Rules and Sunrise Rules as no documents showing Complainant’s authority to register the domain name on the basis of the trademarks which the Complainant does not own were submitted as a part of documentary evidence.  Submission of such documents in the course of subsequent ADR proceedings is not relevant.  The validation agent and the Respondent, on the other hand, did not have any obligation to investigate into the deficiency of Complainant’s domain name application on its own. The validation agent or the Respondent had no obligation to notify the Complainant of such deficiency either.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}