{
    "case_number": "CAC-ADREU-001537",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7 December 2005, Identity and Communications Nordea Group, with its address at Netbanking FI-00020 Nordea Finland, made an application for the domain name SOLO. \r\nThe processing agent received the documentary evidence on 10 January 2006, which was before the 16 January 2006 deadline. The documentary evidence relied upon was consisted of a Finnish trademark No. 233447 \"SOLO\", registered by \"NORDEA BANK FINLAND ABP, Helsinki, FI\", which appears to be the complainant at the present ADR proceedings (hereafter “the Complainant”). The validation agent concluded from the documentary evidence that the applicant (i.e. Identity and Communications Nordea) did not demonstrate that it was the holder of a prior right, since there was a complete mismatch between the name of the holder of the prior right and that of the applicant. Consequently, the dispute concerns the rejection of the application filed on December the 7th 2005 for the registration of the domain name solo.eu. \r\nThe Complaint submitted by Nordea Bank Finland Abp was received by e-mail on 24.5.2006, and in hardcopy on 25.5.2006 by the Czech Arbitration Court. The Time of Filing was set at 30.5.2006 11:46:39. In accordance with Paragraph B2 (a) of the .eu Dispute Resolution Rules (ADR Rules), the Czech Arbitration Court has verified that the Complaint satisfies the formal requirements of the ADR Rules and ADR Supplemental Rules of the Czech Arbitration Court. The payment in the required amount to the Czech Arbitration Court has been made by the Complainant. On the 7th of June 2006 EURid furnished the necessary information package concerning the disputed domain name. The CAC set as the formal date of the commencement of the ADR Proceeding the 8th of June 2006. The Respondent requested the Provider on 26.7.2006 pursuant to paragraph § A2 (i) of the ADR Rules to extend the term of submission of its response in 4 working days. On 28.7.2006 the case administrator of the Czech Arbitration Court confirmed that the deadline for delivering the Response in the above ADR Proceeding has been prolonged by 4 working days. An acknowledgement of receipt of the Response was posted on the case file by the Czech Arbitration Court on 07.08.2006. The complainant received at the same day a copy of the response. Two days later the case administrator posted a Notification of Respondent's Default, informing the respondent on the consequences of its default. The case administrator notified the parties about the Panelists appointment on the 16th of August 2006.",
    "other_legal_proceedings": "In Case the Complaint is filed against the decision(s) of EURID: The decision dated from April 17, 2006, according to which the Application for the domain name was rejected by EURid \r\nDecision(s) Number(s) or another specification provided by EURID: -\r\nDate of Issue of decision: 17.4.2006\r\nCase File: Case File information is hereby attached as Annex 2 \r\nOther Legal Proceedings:\t\r\nThe Panel is not aware of any other legal proceedings pending or decisions which are related to the domain name under dispute.",
    "discussion_and_findings": "1. On the default of the Respondent\r\nS. B.3 (a) of the ADR Rules states that the Respondent shall submit a Response to the Court within thirty working days of the date of the delivery of the Complaint. \r\nS B. 3 (f) of the ADR Rules states that “if a Respondent does not submit a Response or submits solely an administratively deficient Response, the Provider shall notify the Parties of Respondent’s default. The Provider shall send to the Panel for its information and to the Complainant the administratively deficient Response submitted by the Respondent”.\r\nThe first issue arising from this case is the weight that must be given to the delayed response of the Respondent. According to Art. 22.10 of Regulation 874\/2004 \"Failure of any of the parties involved in an ADR procedure to respond within the given deadlines or appear to a panel hearing may be considered as grounds to accept the claims of the counterparty\". Further, pursuant to Section B 10 (a) of the ADR Rules \"in the event that a Party does not comply with any of the time periods established by these ADR Rules or the Panel, the Panel shall proceed to a decision on the Complaint and may consider this failure to comply as grounds to accept the claims of the other Party\". In the present case the Respondent was supposed to submit its response on July the 9th pursuant to Art. 22.8 of Regulation 874\/2004 and S. B (3) a of the ADR Rules. Finally, the response was submitted a month later (!). Such a belated response is totally incompatible with the fundaments of the ADR procedure established by the CAC. One of the main advantages of these proceedings is the speedy rendering of a decision. The respondent has shown a serious disregard for the rules aforementioned. Unfortunately, it seems that the Respondent is repeatedly presenting delayed responses to similar proceedings [see for instance cases Nr. 294, 431, 706, 843, 865, 1194, and 1228].\r\nThe panel bears of course in mind that the Respondent is literally overloaded from the bulk of complaints filed against it. From a total number of approximately 150 decisions, EURid was in the respondent’s position in nearly 120 among them. Nevertheless, this situation cannot serve as a viable excuse for disregarding strict deadlines set by the Regulation and the ADR Rules. Besides this, it is the Respondent itself that acknowledges the importance of safeguarding formal requirements, when it emphasises that: \"Strict rules are indeed essential to manage the validation of hundreds of thousands of domain name applications\". Once the Respondent is expecting from applicants to comply with any strict rules during the registration procedure, it is at the same time obliged to show a similar respect to the strict time requirements posed by the Public Policy Rules and the ADR Rules of the CAC, and if not, to carry the consequences of its failure.  \r\nFor the above reasons this Panel dismisses the response due to the gross delay the Respondent showed in filing it, and will proceed with the case without taking any notice of the arguments therein. At the same time, the Panel believes that the non-compliance shown by the Respondent towards the above rules may give rise to consider this failure as a ground to accept the complainant’s claim. However, this fictional acceptance may not lead this Panel automatically to accept the complaint. Art. 22.11 (b) Reg. 874\/2004 and S. 11 (2) b ADR Rules hinder the Panel from a similar approach.\r\n2. On the merits of the case \r\nThe Panel wishes to begin with the provisions related to the case at hand. \r\nArticle 14.1 Reg. 874\/2004 states that “all claims for prior rights under Article 10.1 and 2 must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists”. Art. 14.4 states that “every applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question”. Art. 14.7 sets forth that “the relevant validation agent shall examine whether the applicant that is first in line to be assessed for a domain name and that has submitted the documentary evidence before the deadline has prior rights on the name. If the documentary evidence has not been received in time or if the validation agent finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this”. Finally, Art. 14.10 provides that “the Registry shall register the domain name, on the first come first served basis, if it finds that the applicant has demonstrated a prior right”.\r\nPassing now to the Sunrise Rules, the Panel wishes to underline the following provisions: Art. 3 states the following: “1. An Application is only considered complete when the Applicant provides the Registry, via a Registrar, with at least the following information: \r\n(i) the full name of the Applicant; (v) the Domain Name applied for; \r\nand (vii) the complete name for which a Prior Right is claimed “. Art. 13.2 deals with the documentary evidence to be submitted for registered trademarks and states the following: “… The Documentary Evidence must clearly evidence that the Applicant is the reported owner of the registered trade mark”. According to Art. 20.3 \r\n“if … the Documentary Evidence provided does not clearly indicate the name of the Applicant as being the holder of the Prior Right claimed, the Applicant must submit official documents substantiating that it is the same person as or the legal successor to the person indicated in the Documentary Evidence as being the holder of the Prior Right”. \r\nThe role of the Validation Agent is regulated in Art. 21. According to Art. 21.2 and 3\r\n“[2] the Validation Agent examines whether the Applicant has a Prior Right to the name exclusively on the basis of a prima facie review of the first set of Documentary Evidence received and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules. [3]. The Validation Agent is not obliged, but it is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced”.\r\nThe issue at stake is whether the reported mismatch between the name of the applicant and the owner of a prior right according to the documentary evidence constitutes a solid basis upon which the Registry was entitled to reject the application. The Panel has to point out the multitude of relevant case law available. There are two groups of decisions worth to be mentioned. The first group is related to purely technical problems involved in the registration process, which attributed to the following discrepancy [cases Nr. 181 and 838], or to a failure of the Validation Agent pursuant to Art. 21 (3) of the Sunrise Rules, “to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced.” [cases Nr. 174, 253, 431, 774, 1525].  The second group of decisions deal with mistakes during the registration process which cannot be remedied afterwards [see cases Nr. 192, 294, 501, 706, 810, 865, 894, 954, 984, 1186, 1194, 1232, 1298, 1443, 1539, 1625, 1627]. The subject matter is of course to decide the group under which the present case must be classified. \r\nAt this point the Panel wishes to reiterate the factual background: The applicant’s data are \"IDENTITY AND COMMUNICATIONS NORDEA GROUP\", whereas the holder of the prior right on registered trademark SOLO, who is also the complainant in the present case is \"NORDEA BANK FINLAND ABP\". \r\nThe only common point between the name of the applicant and that of the complainant is the word Nordea. The rest of the data are completely different. Even the addresses of the applicant [Netbanking FI-00020 Nordea FI] and the holder of the prior right\/complainant [Aleksanterinkatu 36 B, Helsinki Nordea, Finland, FI-00020] are substantially different. \r\nBefore dealing with the present case, the Panel is of the opinion that a brief report concerning the existing case law is imperative. \r\na. Cases rejecting the complaint\r\nCase 192: The applicant was the legal person @TOLL, while the trademark owners were Mr. Frank Budwillat and Mr. Rüdiger Bäcker. In respect of the discrepancy between the identity of the Domain Name Applicant and the trademark owners, the Panel found that Mr. Ruediger Thomas Baecker’s statement that he applied for the domain name <atoll.eu> does not necessarily mean that he applied on his behalf. If the application was indeed submitted on behalf of the legal person @TOLL and no documentary evidence was provided substantiating Domain Name Applicant’s prior right during the application and validation period, the Respondent cannot be found to have erred in its decision to reject the domain name application.\r\nCase 501: EURid rejected the Complainant’s applications to register the Domain Names< lode.eu.> and <procare.eu>  because the names LODE and PROCARE were registered in the name of Lode Holding BV and not in the name of the Applicant (Complainant), Lode B.V. The applicant should not expect the Registry or the Validation Agent to engage in its own investigations to establish the exact relationship between the registered holder of the trade mark and the applicant.\r\nCase 810: The rejection was based on the fact that, according to the documentary evidence provided, the complainant did not appear to be the owner of the prior right consisting in the Czech trademark for the word Ahold, as the name mentioned in the trademark certificate (Koninklijke Ahold N.V.) differed from the name of the Complainant\/Applicant (Ahold N.V.). Since the Public Policy Rules and Sunrise Rules do not foresee any obligation to cooperate with applicant\/complainant, the Respondent’s decision to reject the application may not be held as conflicting with PPR or EC Regulation 733\/02.\r\nCase 865: Complainant changed its corporate name from “Koninklijke PTT Nederland N.V.” into “Koninklijke KPN N.V.” in June 1998. It filed an application for “HI.EU” domain name in Sunrise Phase I based on Benelux “HI” trademark originally applied for and registered in the name of “Koninklijke PTT Nederland N.V.”. As documentary evidence, it submitted a certificate of the aforementioned trademark registration, where the name of the trademark applicant was “Koninklijke PTT Nederland N.V.”. The Panel held: In cases where domain names are applied for in the Sunrise period, their registration process is subject to specific rules prescribing also required documents for substantiating prior rights including the deadline within which they must be submitted. The ADR proceeding cannot substitute the validation and registration process governed by these rules and therefore, the Panel is of the opinion that the documents provided by the Complainant within the ADR proceeding cannot constitute a basis for annulment of the Respondent’s decision which does not breach any of the EU Regulations in question.\r\nCase 954: Section 21.3 of the Sunrise Rules reads that the Validation Agent is not obliged, but it is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced. The burden of proof therefore is on the applicant.\r\nCase 984: EURid refused to register the disputed domain name, because the evidence in support of the application showed the registration of the trademark ISABELLA in the name of Jydsk Camping Industri A\/S, whereas the application for the disputed name had been made in the name of Isabella Jysk Camping A\/S. The Panel found no reason to question the technical correctness of EURid's decision, and further found that there was no technical or obvious mistake apparent from the face of the application itself which should have put EURid on notice as to the need to make further enquiries \r\nCase 1186: The Trade Mark registration certificate was in the name of “Ruhrgas Aktiengesellschaft” whereas the name of the Applicant was shown as “E.ON Ruhrgas AG”. The Panelist held that, \"in the circumstances, and bearing in mind the duty of the validation agent to try to ensure that the applicant, as shown on the application, demonstrates the appropriate ownership of the prior right, I am of the view that the validation agent in this case was not presented with documentary evidence which on a prima facie review demonstrated the right of the applicant to ownership of the Prior Right. As to whether they should have carried out further investigations, I am conscious that this is specifically called out in the Rules as not being an obligation and to be done in their sole discretion.\r\nCase 1194: Applicant: Moneysupermarket.com Limited, Complainant\/prior right holder: Moneysupermarket.com Financial Group Limited. The Panel held: The domain name has been filed in the name of a company which is legally different from the holder of the prior right; the Panel finds that the Decision of Rejection does not conflict with any of the applicable rules and regulations and that the validation agent, in view of the documentary evidence brought to him, complied with the rules and is not responsible for any error. The ADR procedure is not intended to correct domain name applicants’ mistakes.\r\n\r\nCase 1232: The trademark “mce” [for which a domain name registration was applied] was registered not under the name of the Complainant [Management Centre Europe] but under the name “American Management Association”. As the Complainant did not provide the Registry with Documentary Evidence within the 40 days deadline of Section 8 (5), Subsection 4 Sunrise Rules, such Documentary Evidence was regarded incomplete and not sufficient to prove the claimed prior right of the Complainant. As sufficient documentation was not submitted to the Registry within the 40 days period of Section 8 (5), Subsection 4 Sunrise Rules, and as the timely submitted evidence did not substantiate the prior right of the Complainant, the Panel held that the Registry was entitled to reject the application.\r\n\r\nCase 1443: The Complainant who filed its application under its name KRAAIJVANGER URBIS supported its application with the Proof of Ownership (trademark certificate) of the “URBIS” trademark within the Benelux issued by the Benelux Trademarkbureau in favor of the holder ASTOC INTERNATIONAL B.V. The Panel held: If the filed application is accompanied with the documentary evidence that does not clearly indicate the name of the applicant as being the holder of the prior right claimed and the applicant does not 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, the respective application has to be rejected.\r\n\r\nCase 1539: The Complainant [Setra Group AB] filled in the “Applicant Name” field as “Manager Domain”. The Panel considered that the inaccuracy in the Applicant Name was material but that it could have been corrected in the documentary evidence. However, it had not been corrected in the documentary evidence with the consequence that rejection was justified under both article 3 and article 14 of Regulation 874\/2004 .\r\n\r\nCase 1625: In this case the documentary evidence submitted by the Complainant showed that the “IAV GmbH Ingenieurgesellschaft Auto und Verkehr”, and not the “iav GmbH” is the holder of the trade mark “TELEDRIVE”. Therefore, the documentary evidence in support of the application for the domain name “teledrive.eu” was incomplete. It must be prima facie verifiable from the presented documentary evidence that the applicant for a domain name is also the holder of the trade mark right to the name\r\n\r\nb. Cases accepting the complaint\r\nCase 174: The name on the application was that of the company French Connexion while that on the trade mark registration certificate was that of the founder, owner and managing director of the company French Connexion. The Panel held: The registry did not advance any proof that the validation agent or itself had made reasonable efforts to, in terms of section 21 (3) of the Sunrise Rules, “ conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced.” While the same section 21 (3) grants the Validation Agent “sole discretion” to carry out such investigations, the Panelist is of the opinion that it is a fundamental principle of justice that, when granted such discretion, the Validation Agent is not exempted from the requirement to act reasonably. In the circumstances of the case, the Validation Agent could have easily cleared up any small doubts by seeking and obtaining further proof of identity despite different name appearing on the trade mark certificate. It would be unreasonable for the Validation Agent not to have expended the minimum of effort to clear this doubt.  \r\nCase 253: The name on the application contained one word less than the name on the trade mark registration certificate while the address on the trade mark certificate was within the same town but not in the same street as that given on the application. The Panel [actually the same Panelist as in case 174] annulled the Registry’s decision, using the same argumentation as in the previous case.\r\nCase 431: The Panel ruled that the Respondent had to reject the Complainant’s application, since the names appearing in the Cover Letter and in the trademark certificate the documentary evidence consisted of were different, and could lead the Respondent to assume that two different legal entities were involved. However, the Complainant gave  evidence before the Court that it was entitled to register the Domain Name. Thus, as the rejection of the Complainant’s application conflicts with the right of an applicant to register a domain name when it has demonstrated a prior right, EURid’s decision is annulled and the name is transferred to the Complainant.\r\nCase 774: Alter having reviewed the documents provided by the Parties, the Panel has been able to find out that, due to the Complainant’s questionable provision of evidences, the Respondent considered that the Complainant held no trademark that could support its application. Nonetheless, after having made the corresponding verifications, the Panel has been able to find out that the Complainant does indeed hold a valid trademark registration to support its application. The Panel considers that a strict formalist approach in this case would not be a reasonable solution and would not follow the principles guiding the registration rules of .EU domain names\r\nCase 1525: The Complainant’s trade mark for “ESPO” was in the name “Güler Buyuksarac-Esgikan h.o.d.n. European Social Projects Office”. In the domain application, the name and organisation were given as “Buyuksarac” and “ESPO” respectively. The addresses were identical.  The Panel considered that, taking all of the relevant matters together, it should have been reasonably apparent to the Respondent that “ESPO” in the domain name application was an acronym of the trade mark owner’s trading name “European Social Projects Office” and that the domain name applicant and the holder of the prior right were one and the same. \r\nThe extent of control expected from the Validation Agent has been recently scrutinized by the CAC. In a short discussion note dated from the 1st of September, the CAC underlined the following: \r\n1. The ratio of Section 21(3) of the Sunrise Rules is to allow the Validation Agent to correct certain immaterial or obvious errors. ADR 328 - lastminute exemplifies this. In that case, the applicant made an error in the \"prior right on name\" field only. The Validation Agent could easily correct such a mistake simply by examining the Documentary Evidence. The Documentary Evidence indeed shows the name of the Prior Right. The \"prior right on name\" field as such is not crucial to the validity of an application, in contrast to for example the \"name of the Applicant\" field.\r\n2. According to EURid, the price for validating a single application is in few tens of  EUR. For that price, no deep examination of sources and documents other than the documentary evidence submitted is possible. But, it should be possible to verify\/confirm obvious errors between the application and the documentary evidence. Examples of such obvious errors may be a difference between  the street address of the applicant given on his application and that shown in the (TM) certificate (ADR 253 - Schoeller), or a difference in legal form of the applicant mentioned in the application and in the documentary evidence (ADR 903 - SBK).\r\nHaving considered all the above, the Panel comes to the following conclusions:\r\ni.\tThe mismatch reported in the case at hand is neither based on technical grounds, nor an immaterial one. Since the complainant did not provide the Validation Agent with the necessary modification\/rectification details of the application within the 40 days deadline, the Agent could not have been able to discover by himself the mistake which took place during the registration process. The cases presented under (a) give clear evidence to support this view. \r\nii.\tThe Panel cannot share the view taken by cases 431, 774 and 1525. The CAC is not a second instance court for false applications. Its powers are clearly stipulated under Art. 22.11 (b). \r\niii.\tThe Panel is also unwilling to adopt the interpretation given to section 21 (3) of the Sunrise Rules by cases 174 and 253, at least with regard to the present factual background. Unlike the situation in case 253, we deal here with a complete mismatch between the applicant’s and the complainant’s name, save one word. Adding the difference regarding the addresses listed, it becomes obvious that the discrepancy was of a much bigger extent compared to the cases aforementioned.",
    "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": "2006-09-06 00:00:00",
    "informal_english_translation": "The Complainant seeks for the annulment of the Respondent’s decision to reject its application for the domain name under dispute. The ground of rejection was the mismatch between the applicant’s [Identity and Communications Nordea Group] with the complainant’s name [\"NORDEA BANK FINLAND ABP, Helsinki, FI\"]. The complainant argued that this mistake was immaterial, while the Respondent supported the opposite view. \r\nDue to a delay in filing the response, the Panel did not consider the argumentation put forward by the Respondent. \r\nThe present case concerns a question which has been repeatedly considered by other Panels in previous cases. The prevailing opinion concludes that the applicant has the burden to prove that the registration requirements have been met. Neither EURid nor the Validation Agent is obliged to proceed to profound examination regarding the application. Consequently, minor defects, such as misspellings, are subjected to remedy. However, in the present case, the differences were evident: The only common ground was the indication Nordea. In addition to the above, even the given address of the applicant was totally different to the address given by the complainant. No rectification or amendment of the mismatch was delivered by the complainant to the Registry and\/or the Validation Agent during the term of 40 days, stipulated by the Sunrise Rules. \r\nTherefore, the rejection of the application was in accordance with the Rules and Regulations dealing with .eu domain name registrations, which leads to the dismissal of the complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}