{
    "case_number": "CAC-ADREU-001686",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Mr. Matthias Freytag, the Complainant and employee of TTS Tooltechnic Systems AG & Co. KG requests the annulment of the negative decision taken by EUrid regarding the domain name protool.eu and requested the attribution of this domain name to the above referred company. He argues that EUrid's registration decision not to attribute the domain name protool.eu to TTS Tooltechnic Systems AG und Co.KG conflicts with the European Union regulations. EUrid, as Respondent, itemizes all the arguments it deems relevant so as to defend its decision.",
    "other_legal_proceedings": "This Panel has no information about other legal proceedings pending or decided which relate to the disputed domain name",
    "discussion_and_findings": "1. APPLICATION FOR THE DOMAIN NAME PROTOOL.EU MADE BY MR. MATHIAS FREYTAG\r\n\r\nIt is suitable to bring up Art. 10 (1) of Commission Regulation (EC) no 874\/2004 of 28 April 2004 (hereinafter, the “Regulation”) regarding the eligibility of just the holders of prior rights which are recognised or established by national or Community law to apply for registration of domain names during a period of phased registration before general registration of .eu domain starts. And Art. 14 (4) of the Regulation stating that every applicant must submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. \r\n\r\nMr. Freytag, indeed, applied for the domain name PROTOOL on December 7, 2005 and delivered the documentary evidence before the established deadline. It is important the fact that in the application the Complainant did not appear to be the owner of the PROTOOL trademark, given that the name of the holder mentioned on the trademark certificate differed from the name of the Complainant. \r\n\r\nTo this regard this Panel believes that, although the Complainant argues that he acted in the name of the owner of the PROTOOL trademark which is TTS TOOLTECHNIC SYSTEMS AG & CO. KG,  as its representative, -even though said documentation was not delivered on time, but once the ADR Proceeding was started- it is clear that he was not the owner of the prior right. But this Panel must remark that the Complainant neither provided any information allowing to determine whether the complainant was entitled to apply for the PROTOOL domain name on the basis of the PROTOOL trademark. It’s quite important to provide this information to the Validation Agent, and the Complainant did not do so in the relevant moment.\r\n\r\nThe Sunrise Rules are not optional when applying for a domain name. These rules must be obligatorily complied with. Applicants must acquaint themselves with these rules before submitting an application. And it seems that in the case herein the applicant did not do so in depth. The importance to meet the Sunrise Rules is clearly stated in art. 5 (3) of Regulation 733\/2002, as mentioned by the Respondent. The non-compliance of these rules can derive in the application’s rejection.\r\n\r\n2. REGARDING THE NATURAL PERSON WHO SUBMITTED THE APPLICATION FOR A DOMAIN NAME AND THE COMPANY WHICH IS LISTED AS THE APPLICANT\r\n\r\nIn the Respondent’s response to the statements and allegations made in the Complaint EURid is itemizing all the requirements and steps that must be followed when requesting for an application of a domain name during the Sunrise Period, as established in section 3 (1) of the Sunrise Rules. More specifically the Respondent explains how the request form must be filled out. As the Respondent clarifies, the natural person\/department that is mentioned in the “name” field is considered as the contact person within the company.\r\n\r\nIt is important to highlight the fact that the actual Applicant was not really the natural person\/ department who submitted the request form, but the Company. Section 3 (1) of the Sunrise Rules clearly specifies that “where no name of a company or organisation is specified, the individual requesting registration of the Domain Name is considered the Applicant; if the name of the company or the organisation is specified, then the company or organisation is considered the Applicant”. \r\n\r\nTo this regard the Respondent’s position is right when saying that then if one fills in the “organisation” field, one is really stating that the company listed as “organisation” is a separate entity and the domain name must be granted to the company listed as “organisation”, as long as the examination of the documentary evidence shows that the company is entitled to that domain name. The Complainant’s application did certainly not mention his company as the “organisation”. And this constitutes a serious mistake, even though we are dealing with formal aspects. In any case, this Panel insists that we should not play the formal aspects down, since they are a decisive factor when attributing domain names, and again, it’s so ratified by the relevant rules. \r\n\r\n3. DOCUMENTARY EVIDENCE \r\n\r\nIn fact, in the case herein, there is no doubt that the Applicant was ought to provide all the information and documents proving that he was then the holder of a prior right. It is for this reason that Article 10 (1) of the Regulation states that only the holder of a prior right is eligible to be granted the corresponding domain name. Article 14 (4) of the regulation also leaves it clear that the documentary evidence must unmistakably show that the applicant is the holder of the prior right claimed on the name in question. \r\n\r\nIn this case, the Complainant –as he himself affirms- is an employee of the owner of the trademark AND NOT THE OWNER OF THE TRADEMARK. This fact is essential. Section 20 (1) of the Sunrise Rules states that if an applicant has obtained a licence 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).  To this regard, it seems that the Complainant did not submit any license declaration with his documentary evidence and consequently the Respondent had no information before it that the complaint was indeed entitled to use the PROTOOL trademark. That factor was also decisive so as the Respondent to reject his application. In this Panel’s opinion, the Respondent’s was not a mistaken decision. \r\n\r\n4. NEW DOCUMENTS SUBMITTED BY THE COMPLAINANT\r\n\r\nNot in vain we must mention Section 21 (2) of the Sunrise Rules stating that the validation agent will examine 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. \r\n\r\nThere is a clear evidence that the Complainant has submitted a document in which the owner of the trademark states that the Complainant is its representative. But both parties admit that these documents were not enclosed with documentary evidence but instead were provided to the Respondent for the first time in the framework of the present ADR Proceeding. The Complainant indeed should have had substantiated the prior right at the proper moment, and not out of time; and even less, once the ADR Proceeding is started. Should the Panel consider this new evidence at this point, it would treat unfairly any other applicant that may have filed for the Domain Names immediately after the Applicant.\r\n\r\nIn fact, Article 22 (1) b of the Regulation states that a decision taken by the Registry may only be annulled when it conflicts with this Regulation. \r\n\r\nIn the case herein, this Panel can affirm that in no way the Registry’s decision conflicts with this Regulation. Rather, its decision was taken with a scrupulous observance of the relevant 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": "2006-09-08 00:00:00",
    "informal_english_translation": "1. APPLICATION FOR THE DOMAIN NAME PROTOOL.EU MADE BY MR. MATHIAS FREYTAG\r\n\r\nTaking into account Art. 10 (1) of Commission Regulation (EC) no 874\/2004 of 28 April 2004 (hereinafter, the “Regulation”) and Art. 14 (4) of the Regulation,  it is important the fact that in the application the Complainant did not appear to be the owner of the PROTOOL trademark. \r\n\r\nThe Complainant neither provided any information allowing to determine whether the complainant was entitled to apply for the PROTOOL domain name on the basis of the PROTOOL trademark. It’s quite important to provide this information to the Validation Agent, and the Complainant did not do so in the relevant moment.\r\n\r\nThe importance to meet the Sunrise Rules is clearly stated in art. 5 (3) of Regulation 733\/2002, as mentioned by the Respondent. In the case herein, the Complainant did not meet the same. \r\n\r\n2. REGARDING THE NATURAL PERSON WHO SUBMITTED THE APPLICATION FOR A DOMAIN NAME AND THE COMPANY WHICH IS LISTED AS THE APPLICANT\r\n\r\nThe actual Applicant was not really the natural person\/ department who submitted the request form, but the Company. Section 3 (1) of the Sunrise Rules clearly specifies that “where no name of a company or organisation is specified, the individual requesting registration of the Domain Name is considered the Applicant; if the name of the company or the organisation is specified, then the company or organisation is considered the Applicant”. \r\n\r\nTo this regard the Respondent’s position is right when saying that then if one fills in the “organisation” field, one is really stating that the company listed as “organisation” is a separate entity and the domain name must be granted to the company listed as “organisation”, as long as the examination of the documentary evidence shows that the company is entitled to that domain name. The Complainant’s application did certainly not mention his company as the “organisation”. And this constitutes a serious mistake, even though we are dealing with formal aspects. In any case, this Panel insists that we should not play the formal aspects down, since they are a decisive factor when attributing domain names, and again, it’s so ratified by the relevant rules. \r\n\r\n3. DOCUMENTARY EVIDENCE \r\n\r\nAs Article 10 (1) and 14 (4) of the regulation leaving it clear that the documentary evidence must unmistakably show that the applicant is the holder of the prior right claimed on the name in question, in the case herein the applicant did not enclose all the documentary evidence, neither provided any information to EUrid on the right time evidencing that the complainant was entitled to use the Protool trademark.  In this Panelist’s opinion, the Respondent’s was not a mistaken decision. \r\n\r\n4. NEW DOCUMENTS SUBMITTED BY THE COMPLAINANT\r\n\r\nSection 21 (2) of the Sunrise Rules state that the validation agent will examine 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. \r\n\r\nThe documents in which the owner of the trademark states that the Complainant is its representative were not enclosed with documentary evidence but instead were provided to the Respondent for the first time in the framework of the present ADR Proceeding. The Complainant indeed should have had substantiated the prior right at the proper moment, and not out of time. Should the Panel consider this new evidence at this point, it would treat unfairly any other applicant that may have filed for the Domain Names immediately after the Applicant.\r\n\r\nIn fact, Article 22 (1) b of the Regulation states that a decision taken by the Registry may only be annulled when it conflicts with this Regulation.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}