{
    "case_number": "CAC-ADREU-001438",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Glusburn Holdings applied for the domain name ELLISON on 2 February 2006 and the application was accepted on 10 April 2006.\r\n\r\nThe documentary evidence submitted by Glusburn Holdings included an extract for a community trade mark, but did not include the full information concerning the mark, in particular the information to the effect that the word mark was for “E ELLISON” not for “ELLISON”.  The mark consists of the word “ELLISON” preceded by a drawing which is a highly stylized rendition of the letter “E” surrounded by a metal fastener.\r\n\r\nThe Complainant applied for the disputed domain name on 4 February 2006 and is next in queue.\r\n \r\nThe Complainant submitted its Complaint, directed against the Registry’s decision to accept Glusburn Holding’s application, on 19 May 2006.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "Procedural Points \r\n\r\nPursuant to 26.1 of the Sunrise Rules, an ADR proceeding against the Registry may be initiated within 40 days of a decision by the Registry.  In the present case the contested decision was made on 10 April 2006 and the Complaint was submitted on 19 May 2006. The Complaint was therefore submitted within the deadline and is admissible.\r\n \r\nWhile the Response was filed late, in the present case the content of the Response supports the substance of the Complaint.  Notwithstanding the fact that there is a special onus on the Respondent, as the Registry, to adhere to the time limits set in the procedural rules, and the request by the Complainant not to admit the Response, the Panel has exercised its discretion, under B.2.i of the ADR Rules, to admit the Response. \r\n\r\nComplainant alleges that, but for mistakes made by two registrars, it would have been the first applicant for the disputed domain name.  Such allegations are outside the scope of the present procedure, which can be founded only on the relevant provisions of the European Regulation and the Sunrise Rules. Therefore, the Panel will not consider this matter.\r\n \r\nSubstantive Issues \r\n\r\nThe present case is very similar to case no. EU 01053 (SANTOS) and the present decision is consistent with, and indeed largely copied from, the decision in that case.\r\n\r\nArticle 10.1 of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter Regulation) states that only holders of prior rights which are recognised or established by national or Community law shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts. \r\n \r\nArticle 10.2 of the Regulation states:\r\n \r\n” 2. 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\n \r\nThe detail of the methodology to be applied by EURid during the Sunrise Period is set out in the Sunrise Rules. Section 19.2 states: \r\n \r\n”2. Documentary Evidence must clearly depict the name for which a Prior Right is claimed. A Prior Right claimed to a name included in figurative or composite signs (signs including words, devices, pictures, logos, etc.) will only be accepted if \r\n \r\n(i) the sign exclusively contains a name, or \r\n \r\n(ii) the word element is predominant, and can be clearly separated \r\nor distinguished from the device element, \r\n \r\nprovided that \r\n \r\n(a) all alphanumeric characters (including hyphens, if any) included \r\nin the sign are contained in the Domain Name applied for, in the \r\nsame order as that in which they appear in the sign, and \r\n \r\n(b) the general impression of the word is apparent, without any reasonable possibility of misreading the characters of which the \r\nsign consists or the order in which those characters appear.” \r\n\r\nIn the present case, the name to which the Prior Right is claimed is the sign registered as Community Trade Mark 003017803. The sign is both figurative inasmuch as it contains a device or logo element and is composite inasmuch as it consists of both the figurative element and the word ELLISON. \r\n \r\nThe Complainant argues that Rule 19.2.ii applies and that there is a predominant word element being the word ELLISON and a figurative element being a stylised letter “E”. \r\n \r\nComplainant therefore concludes that not all alphanumeric characters included in the sign are contained in the domain name granted to Glusburn Holdings, which violates 19.2 of the Sunrise Rules and 10.2 of the Regulation. \r\n \r\nRespondent states: “Although in the case at hand the E is intrinsically linked to what appears to be a metal ring, which is the product for which the trademark is registered, it can be interpreted as an alphanumerical character.”\r\n\r\nThe Panel agrees with Respondent: it is a matter of interpretation. Given the material submitted by Glusburn Holdings to support its application, the Panel finds no fault the Registrar’s prima facie decision that Glusburn had prior rights in the mark ELLISON.\r\n\r\nHowever, in accordance with the ADR Rules, the Complainant has the right to request this Panel to examine the matter in more depth, considering additional information submitted by the Complainant, in particular the full text of Glusburn Holdings’ Community Trade Mark.\r\n\r\nThat information shows that the word mark is “E ELLISON”. In that light, the Panel concludes that the stylized “E” in the figurative mark must indeed be interpreted, for the purposes of the Regulation and the Sunrise Rules, as an alphanumeric character.\r\n\r\nTherefore Glusburn Holdings would be entitled, under the Sunrise Rules, to the domain name “E ELLISON” but is not entitled to the domain name “ELLISON”.\r\n\r\nThus the present registration must be annulled.\r\n\r\nArticle B.11 of the ADR Rules states that the main remedy available pursuant to an ADR Proceeding against EURid shall be the annulment of the disputed decision taken by EURid. Transfer and attribution will only be granted by the Panel if the Complainant is the next applicant in the queue for the domain name concerned and subject to the decision by EURid that the Complainant satisfies all registration criteria in the Regulation.\r\n\r\nSince EURid has not yet examined the Complainant’s application, it has not yet decided that the Complainant satisfies all registration criteria. Therefore, the transfer and attribution cannot be granted directly by this Panel.\r\n\r\nSection 27.1 of the Sunrise Rules states that if the ADR Proceeding concerns a decision by the Registry to register a Domain Name and the Panel concludes that that decision conflicts with the Regulations, then, upon communication of the decision by the Provider, the Registry will decide whether or not to register the Domain Name in the name of the next Applicant in the queue for the Domain Name concerned, in accordance with the procedure set out in these Sunrise Rules.\r\n\r\nThus, it is clear that EURid must examine the next application in the queue, which is from the Complainant, and decide whether it satisfies all registration criteria set out in the Regulation.",
    "decision": "For the reasons set forth above, in accordance with B.11.c of the ADR Rules, the Panel annuls EURid’s decision to accept Glusburn Holdings’ application for the domain name ELLISON and it orders EURid to cancel the present registration. Further, in accordance with 27.1 of the Sunrise Rules, it orders EURid to examine the next application in the queue (which is from the Complainant) and to accept the Complainant’s application if it satisfies all registration criteria set out in the Regulation.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-08-13 00:00:00",
    "informal_english_translation": "Complainant challenges the registration of the domain name ELLISON on the ground that the registrant has prior rights for the mark “E ELLISON”, but not for the mark “ELLISON”. The registrant’s mark consists of the word ELLISON preceded by a highly stylized letter E surrounded by a drawing of a metal retaining clip.\r\n\r\nWhen accepting the application, EURid considered that the highly stylized rendering of the letter E in the registrant’s trademark was not an alphanumeric character in the sense of 19.2 of the Sunrise Rules.\r\n\r\nBut EURid’s prima facie evaluation was based on information supplied by the registrant.\r\n\r\nOn the basis of a more in-depth examination, and taking into account additional information supplied by Complainant, the Panel concludes that the stylized E is indeed an alphanumeric character in the sense of 19.2 of the Sunrise Rules. \r\n \r\nTherefore the Panel agrees with Complaint’s request that EURid’s decision be annulled and that the present registration be cancelled; further the Panel decides that EURid should examine the next application in the queue (which is from the Complainant) and accept the Complainant’s application if it satisfies all registration criteria set out in the Regulation.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}