{
    "case_number": "CAC-ADREU-001627",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "This Complaint arises out of the interpretation and application of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“Regulation”) and the .eu Registration Policy and Terms and Conditions for Domain Name Applications made during the phased registration period (“the Sunrise Rules”). \r\n\r\nThe Complaint is made by Koninklijke KPN N.V. (“the Complainant”) against the decision of the EURid (“the Respondent”) which rejected the Complainant’s application for the registration of the domain name  «planetinternet.eu».\r\n\r\nThe Complainant applied for the domain name «planetinternet.eu » on 18 January 2006, relying on its rights in the Benelux trademark 0551229. The Complainant’s documentary evidence was received on 30 January 2006. The application was thereafter reviewed by the validation agent and subsequently dismissed by the Respondent for failing to establish a prior right.\r\n\r\nBy way of remedy, the Complainant requests that the domain name  «planetinternet.eu» be transferred to itself.\r\n\r\nThe Complainant has lodged its Complaint pursuant to Section 26 of Sunrise Rules, which provides that following a decision by the Registry to register a .eu domain name, an interested party may initiate an ADR Proceeding (as defined therein) against the Registry with regard to that decision.",
    "other_legal_proceedings": "None",
    "discussion_and_findings": "SUBMISSION DEADLINES\r\n\r\n1.\tBefore the Panel assesses the merits of this case, it must first deal with the preliminary issue of the Respondent’s failure to file its response to the Complaint within the given deadline. Section A2(i) of the ADR Rules provides that the Provider may only extend a deadline (other than by agreement of all Parties) provided that the requesting party has filed its request before the expiration of the original deadline. In this instance, the Respondent was notified that an ADR Proceeding had been commenced against them on 12 June. 2006. In accordance with Section B3(a), the notification stated that the Respondent had to submit a Response to the Complaint within 30 working days from the delivery of the notification i.e. by 24 July 2006. The Respondent did not respond until 1 August 2006, and at that point, sought an extension to the original deadline. This extension, which was approved by the Provider, now appears to have been granted erroneously.\r\n\r\nIn light of this, the Panel relying on Section B3(f) of the ADR Rules, and further Section B8, shall solely admit the Respondent’s Response purely for information.\r\n\r\n\r\n\r\nPANEL FINDINGS\r\n\r\n2.\tThe Regulation and further the Sunrise Rules govern all .eu domain name applications made during the phased registration period. The principal obligations of the Registry regarding its decision to register .eu domain names during the phased registration are set out in Article 14 of the Regulation, and in particular, the final paragraph of that Article 14 obliges the Registry to register .eu domain names on a the first come first served basis, PROVIDED THAT it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in that Article. Thus, the Panel must establish whether the Complainant demonstrated such a prior right when it applied for the domain name «planetinternet.eu». \r\n\r\n3.\tIt should be noted that the Complainant has attached many new documents to its Complaint which did not form part of its application: the Panel agrees with previous Panels’ comments on this point – that documents which did not form part of the first set of documents submitted to the validation agent should be disregarded when assessing the validity of a decision of the Respondent (ADR 706 «autowelt.eu»,  ADR 294 «colt.eu», ADR 219 «isl.eu»). Moreover, “[i]f the Panel admitted the documents filed by the Complainant, it would put it self into a role of quasi-validation or registration entity which would go beyond its powers” (ADR 865 «hi.eu»).\r\n\r\n\r\n4.\tThe application for the domain name «planetinternet.eu» by the Complainant was made on 18 January 2006, with the documentary evidence being received by the Respondent’s validation agent on 30 January 2006. The Complainant only submitted an extract of the certificate of registration for the Benelux trade mark PLANET INTERNET with which there were 2 issues:\r\n\r\n(i) \tThe name on trade mark certificate did not match the applicant’s name; and\r\n\t\r\n(ii)\tThe submitted trade mark certificate had expired in August 2004\r\n\r\n\r\n5.\tIn light of these abnormalities in respect of the documentary evidence submitted by the Complainant in its application for the domain name «planetinternet.eu», the Panel must consider whether the validation agent fulfilled its obligations when assessing the Complainant’s application. Under the Sunrise Rules:\r\n\r\n“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” (Section 21.2); and further,\r\n\r\n“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.” (Section 21.3).\r\n\r\n\r\n6.\tThe Panel must consider each issue with the Complainant’s application (as set out in paragraph 4, above).\r\n\r\n(i) \tThe name on trade mark certificate did not match the applicant’s name\r\n\r\nThe Complainant explains in detail that in 1998, it changed its company name from «Koninklijke PTT Nederland NV» to «Koninklijke KPN NV», and given that the trade mark was granted in 1995, the certificate still contained the original name of «Koninklijke PTT Nederland NV»: for that reason, the name on the trade mark certificate which it submitted to the validation agent was different to the name set out on its application for the domain name «planetinternet.eu». It should be recalled that Section 20.3 of the Sunrise Rules expressly provides that where there has been a name change, the relevant documentation must be submitted to substantiate that it is the same person.\r\n\r\nThe validation agent conducted a prima facie review of the submitted document, and in conjunction with point (ii) below, reached the conclusion that as the names did not match, and there was no other documentary evidence to explain such a discrepancy, that the applicant (i.e. the Complainant) had not established its prior right. While it is pure speculation on the part of the Panel, had the Complainant submitted a copy of the deed which shows the name change (as has been provided in this Complaint), the validation agent may well have reached a different conclusion on this point. As noted in paragraph 5, the validation agent is not obliged to conduct its own investigations and therefore an applicant must take care in making its application during the phased registration period to ensure all necessary documentation is submitted to support its application and clearly establish its prior right to a domain name. In this application, the Complainant failed to meet this requirement.\r\n\r\n\r\n(ii)\tThe submitted trade mark certificate had expired in August 2004\r\n\r\nIt is undisputed that the Complainant submitted as its documentary evidence, a trade mark certificate which had expired in August 2004, i.e. prior to the date of the application. At the time of its application, the Complainant was in fact in possession of a valid certificate of renewal for the trade mark (and in the correct name), but while it has provided a copy of this in its Complaint, it did not submit this to the validation agent: as the Complainant acknowledges, this was a mistake and it does appear to be an unfortunate oversight.\r\n\r\nThe validation agent, who was only in receipt of the expired trade mark certificate, was under a duty to reject the application on the basis of Section 11.3, given that as far as the validation agent was aware, on the date of the Application (18 January 2006) the Prior Right had already expired (18 August 2004). Section 11.3 provides, \r\n\r\n“The Applicant must be the holder (or licensee, where applicable) of the Prior Right claimed no later than the date on which the Application is received by the Registry, on which date the Prior Right must be valid, which means that it must be in full force and effect.” \r\n\r\n\r\n5.\tWhile it could be argued that the validation agent could have conducted its own investigations, it is certainly not obliged to and indeed should not be expected to. Rather the onus falls on the applicant to provide all documentation to support its application. Further, in this particular instance, given that there were the two anomalies – incorrect name and an expired trade mark certificate, the validation agent and therefore the Respondent was reasonable in reaching its decision to reject the application. \r\n\r\n\r\n6.\tAs the Panel noted in ADR 219 «isl.eu», “One could argue that sympathy is overruled by the applicable Regulations serving among other purposes the (cost-effective) functionality of the phased registration and the principles hereof”, however, the Regulations and the Sunrise Rules were clearly drafted to ensure a fair distribution of .eu domain names during the phased period and if an applicant fails to fulfil its primary obligations, then, even where such failure is due to an oversight or genuine mistake, the application must be rejected by the validation agent.\r\n\r\n\r\nCONCLUSION\r\n\r\n7.\tThe Panel has carefully considered all facts of this case and, while sympathetic to the Complainant’s position, the Panel does not find any breach of the aforesaid Regulations or Sunrise Rules by the Respondent.  The Panel therefore must dismiss the Complaint. While the Panel cannot overly speculate, had the Complainant submitted the correct documentation, demonstrating a name change and the renewal certificate, there would probably be a different outcome.",
    "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": "2006-08-21 00:00:00",
    "informal_english_translation": "The Complainant contested the Respondent’s (EURid) rejection of the Complainant’s application for the domain name «planetinternet.eu» during the phased sunrise period.\r\n\r\nThe Respondent rejected the application on the basis that (i) the name on the trade mark certificate (the sole documentary evidence) was different to that of the applicant’s (the Complainant) name; and (ii) the trade mark certificate submitted to the Respondent had in fact expired in 2004.  The Complainant explained that it mistakenly submitted the incorrect documentation, and provided to the Panel evidence that it had in fact changed its company name and the trade mark had been renewed in due time.\r\n\r\nThe Panel concluded that the prior right was in fact existing but found that such documentary evidence proving such was not in due time submitted to the validation agent and therefore the Respondent had the right to deny the Complainant’s application as the burden of proof remains squarely with the Complainant to submit the correct documentation.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}