{
    "case_number": "CAC-ADREU-001542",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "All capitalized terms not defined herein are used by reference to the various regulations and rules identified in this decision.\r\n\r\nThis complaint arises out of the interpretation and application of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“Regulation”), European Parliament and Council Regulation (EC) No 733\/2002 of April 22, 2002 (“EU Regulation”) and the .eu Domain Name Terms and Conditions and phased registration rules for domain name applications made during the phased registration period (“the Sunrise Rules” and the “Conditions”).\r\n\r\n1.The Domain name application proceeding\r\n\r\nIDV Import-und direkt- Vertriebsgesellschaft mbH (hereafter \"the Complainant\" or “Applicant”) applied for the domain name MEGAMAN.EU on 3 January 2006.\r\nThe validation agent received the Documentary Evidence on 3 February 2006, before the 12 February 2006 deadline.\r\nThe Documentary Evidence demonstrates that the holder of the Community trademark for which the Prior Right was claimed was registered to “Werner Th. Wiesner”, not the Complainant.\r\nTherefore, the Registry (hereafter “the Respondent”) concluded that the Documentary Evidence did not establish that the Complainant was the holder of a Prior Right and rejected the Complainant’s application.\r\n\r\nThe Complainant requests that the Panel annul the Registry’s decision and to attribute the domain name MEGAMAN.EU to it.\r\n\r\n2.The ADR proceeding\r\n\r\nOn May 24, 2006, Complainant submitted a Complaint to the ADR Center against Respondent’s decision.  This was filed in the German language.\r\n\r\nA number of documents were subsequently filed.  All in the German language. \r\n\r\nOn August 23, 2006, Respondent submitted a Response to the ADR Center.  This was filed in the English language.\r\n\r\nOn September 12, 2006, the Panel ordered on the basis of the ADR Rules, Rule A(3) (d) and B(8) that if a party wishes to rely on the Complaint , or any other document, to demonstrate whether or not there is a conflict between the disputed decisions of the Registry and Regulation 733\/2002, that Party should submit the Complaint in English and a statement indicating which documents are relevant and provide a translation of such documents or summary in English by Monday September 18, 2006\r\n\r\nNo translation has been submitted.",
    "other_legal_proceedings": "The Panel is not aware of any other pending or decided legal proceedings relating to the disputed domain names.",
    "discussion_and_findings": "1. Documents presented to the Panel\r\n\r\nUnder Section 16(3) of the Domain Names Registration Terms and Conditions, the language of any and all proceedings against Respondent shall be English.  Since these ADR Proceedings are in English all documents should be submitted in the English language.  The second sentence of Paragraph A3(c) of the ADR Rules states that the Panel may disregard documents submitted in languages other than the language of the ADR Proceeding without requesting their translation, leaving the admission of the document to the discretion of the Panel.  \r\n\r\nThe Panel notes that the Complaint was filed in the German language.  The Panel also notes that under Rules B(7)(b)-(c), the Panel shall ensures that the Parties are treated fairly and with equality and that the ADR Proceeding takes place with due expedition.  \r\n\r\nOn the basis of the above considerations and of the ADR Rules, Rule A(3)(d) and B(8) the Panel stated via a non standard communication dated September 12, 2006 that: (1) if either Party wishes to rely on the Complaint, or any other document, to demonstrate whether or not there is a conflict between the disputed decisions of the Registry and Regulation 733\/2002, that Party should submit the Complaint in English and a statement indicating which documents are relevant and provide a translation of such document or summary in English by Monday September 18, 2006.\r\n\r\nThe Complainant did not respond to the non standard communication dated September 12, 2006.  As a result, the Panel can only deduce that Complainant is happy with the idea that the Panel shall not take the Complaint into consideration in making its decision.  \r\n\r\nAs a result, the Panel has decided not to take the content of the Complaint into consideration.  Nor will it take into account documents that are not translated into English.\r\n\r\nThe Panel is of the view that it can decide based solely on the Respondent’s response which is in the English language and clearly states the reasons for Respondent’s decision.\r\n\r\n\r\n2. Burden of proof that the Applicant is the holder of a Prior Right or a licensee thereof \r\n\r\nThe Regulation, the Sunrise Rules and the Conditions govern all .eu domain name applications made during the phased registration period. The main obligations of Respondent regarding registrations of .eu domain names during the phased registration are set out in Article 14 of the Regulation.  \r\nArticle 14 obliges the Registry to register .eu domain names on a first come first served basis, if it finds that the Applicant has demonstrated a Prior Right in accordance with that Article. \r\nThere are thus two conditions:  to be the first and to own a prior right.   \r\nThe first application received gets a chance to demonstrate its prior right.  If it succeeds in doing so within the defined framework, it will obtain registration.  If it fails, the second application received will then get a chance to demonstrate its prior right, and so on.   \r\n \r\nPursuant to Article 14 of the Regulation, the onus of proving the Prior Right is on Applicant.  See Cases 00119 and 00232.  Applicant must also be the holder of the prior right.  Article 14(4) states that “applicant shall submit documentary evidence that shows that he or she is the holder of the prior right…”.\r\n\r\nArticle 12(2) of the Regulation provides that “during the first part of phased registration, only registered national and Community trademarks, geographical indications, and the names and acronyms referred to in Article 10(3), may be applied for as domain names by holders or licensees of prior rights…”.  \r\n\r\nSection 20 (3) of the Sunrise Rules provides that if an Applicant has obtained a license for a registered trade mark in respect of which it claims a Prior Right, it must enclose with the Documentary Evidence an acknowledgement and declaration form, duly completed and signed by both the licensor of the relevant registered trade mark and the Applicant (as licensee).\r\n\r\nThe burden proving that it is the holder or the licensee of a registered trademark thus falls on the Applicant. If an applicant fails to submit in due time all documents which demonstrate that it is the holder or the licensee of a prior right, the application must be rejected and the next applicant in line may obtain the domain name.  It would not be fair on those in the queue if Respondent accepted Documentary Evidence long after the deadline to submit such evidence has expired.\r\n\r\nApplicant has demonstrated that a trademark existed for the name MEGAMAN and that such trademark was registered in the name of a third party (“Holder”).\r\nHowever, the Applicant has failed to show that a licensee-licensor existed between it and such Holder.\r\n\r\n\r\n3. Ignorance of the Rules\r\n\r\nIn its response, the Respondent summarizes the Complainant’s position.  The Complainant admits that it failed to provide proof that it was a licensee of the holder of the Prior Right.  The reason given for such failure is that Complainant was not familiar with the rules that required Complainant to demonstrate its licensee-licensor relationship with a holder of a Prior Right if is was not itself the holder of such right.  Further, it claims that it was not aware of the existence of a specific form to be used for purposes of showing such relationship, the License Declaration form.  \r\n\r\nArticle 12(2) of the Regulation provides that “during the first part of phased registration, only registered national and Community trademarks, geographical indications, and the names and acronyms referred to in Article 10(3), may be applied for as domain names by holders or licensees of prior rights…”.  \r\n\r\nArticle 14 (10) of the Regulation states that “the Respondent shall register the domain name, on the first come first served basis, if it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in the second, third and fourth paragraphs.\" Section 20 (3) of the Sunrise Rules provides that if an Applicant has obtained a license for a registered trade mark in respect of which it claims a Prior Right, it must enclose with the Documentary Evidence an acknowledgement and declaration form, duly completed and signed by both the licensor of the relevant registered trade mark and the Applicant (as licensee).\r\n\r\nApplicant knew how to apply for the Domain Name and signed the relevant documents that refer to the Regulation and the Sunrise Rules and Conditions which it accepted when it applied for Domain Name.  Further, Applicant knew that demonstration of a Prior Right was required.  It provided evidence to that effect.  It failed to show that it was a licensee of such right.  As a result, Applicant cannot claim not to be aware of the rules. \r\n \r\nFurther, beyond the letter of the law, it is only logical that the Applicant demonstrates not only the existence of the Prior Right but also that it is the holder or the licensee of such Prior Right. Respondent cannot guess the existence of a licensee-licensor relationship.\r\n\r\nAs a result the Panel cannot annul the Respondent‘s decisions as this decision was made in full compliance with the Regulation and derived rules.",
    "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": "2006-09-23 00:00:00",
    "informal_english_translation": "In a dispute in which the language of the proceedings is English, the Panel will not take into account a Complaint filed in another language especially when the Complainant has been given a chance by the Panel to correct this and has refused to do so.\r\n\r\nThe burden proving that it is the holder or the licensee of a registered trademark falls on the Applicant. \r\n\r\nIf an Applicant fails to submit in due time all documents which demonstrate that it is the holder or the licensee of a Prior Right, the application must be rejected so that the next applicant in line may obtain the domain name.  \r\n\r\nThe Applicant assertion that it did not know the rules is not a valid excuse.\r\n\r\nThe Compliant is denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}