{
    "case_number": "CAC-ADREU-001699",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is DSB Bank N.V. registered in Netherlands. The Complainant is legal ancestor of DSB Groep, N.V. who filed the Application to register the domain name FRISIA.EU. The Application was received by the registry on 7\/12\/2005, i.e. in the Sunrise I period.\r\n\r\nThe documentary evidence was originally submitted on 9\/1\/2006. The documentary evidence contained a copy of Benelux trademark registration No. 0647430 for the word trademark “FRISIA” issued by the Benelux Trademark Office.\r\n\r\nOn 29\/4\/2006, the Registry notified a rejection of the Application.\r\n\r\nThe Complainant seeks annulment of the decision rejecting the Application and attribution of the domain name FRISIA.EU to the Complainant.",
    "other_legal_proceedings": "The Panel is not aware of any pending or decided legal proceedings which may affect the disputed domain name.",
    "discussion_and_findings": "As validity of presented evidence was not challenged by parties, the Panel assumes that the discussion can be based on following facts:\r\n\r\n- the Complainant filed an Application to register the domain name FRISIA.EU on 7\/12\/2005.\r\n- at the moment of the application, the Applicant was different legal entity than the holder of Benelux word trademark “FRISIA”\r\n- with legal effects since 24\/12\/2005, the Complainant merged with the holder of Benelux trademark “FRISIA”\r\n- on 9\/1\/2006, the Complainant submitted documentary evidence supporting the Application. The evidence did not contain any documents showing that the Complainant and holder of the trademark FRISIA formed one legal entity.\r\n- on 29\/4\/2006, the Respondent notified the Complainant that the Application was rejected. The notice did not contain any reasoning. The Respondent reasoned the notice later in the Response by mismatch in legal personality of the trademark holder and the Applicant.\r\n\r\nAs can be seen both in the Complaint and the Response, the dispute between parties arose due to their different interpretation of Regulations (EC) No 733\/2002, (EC) No 874\/2004 and the Sunrise Rules. The task of the Panel in this case is to decide whether cited Regulations and related Rules are to be interpreted for the present case as requiring the Respondent to initiatively investigate facts relating to faulty Application of the Complainant.\r\n\r\nWording of Section 21(3) of Sunrise Rules expressis verbis defines permission, but no obligation, for the Validation Agent to further investigate into the circumstances of the Application in its sole discretion. Validation Agent was acting in the disputed matter on behalf of EC administrative bodies and its procedural activities had direct consequences in terms of EC law. Consequently, the Validation Agent was with no doubt bound not just by mere words of EC law and related documents, but also by principles of EC law. In the present case, the Panel has to determine whether applicable black-letter regulations and principles of EC law should have been applied by the Validation Agent and the Respondent in the sense of giving them not just possibility but an obligation to initiatively investigate circumstances of the Application submitted by the Complainant.\r\n\r\nWhenever principles of law are applicable, it is to be noted first that they substantially differ from legal norms. When they are recognized as sources of law, it is no more a question of their applicability, but of intensity in which they apply on particular case (Alexy:1995). Then, like in this case, it can be seen that some question in law is to be answered upon multiple principles that all apply, but that lead to opposite conclusions. The task is then to decide which principles will be given higher or lower ad hoc relevance, i.e. to ad hoc asses intensity of their application.\r\n\r\nIn general, there can be seen two kinds of legal principles, both having different teleology. Principles such as those of good administration, duty of care, proportionality, material truth and others are applied in order to protect fairness of law (Fuller:1964). On the other hand, there are principles protecting certainty of law such as principle of concentration, formal truth, formal equality, vigilantibus iura, etc. (Hart:1965). In the present case, the Complainant claims higher relevance of principles of the first kind, while the Respondent defends its decision by arguing otherwise.\r\n\r\nIn case law of ECJ cited by the Complainant, there was found a reason for giving principles of procedural fairness higher relevance than principles of legal certainty. However, it is to be noted that those procedures and their circumstances substantially differ from the present case. Firstly, nature and purpose of procedures in ECJ cases No. 10\/88 and T-211\/02 differ from procedures set by Regulations (EC) No 733\/2002 and (EC) No 874\/2004 and so can differ the ad hoc balance of applicable principles. The procedure of verification during Sunrise periods is from its beginning designed and proclaimed as strict, swift, strongly formal and consequently also relatively cheap - such facts have to affect, in the view of the Panel, also ad hoc balance of applicable principles in favour of those protecting formal and legal certainty.\r\n\r\nSecondly, in all cases cited by the Complainant, including Panel decision No. 00253, emphasis on principles of procedural fairness (such as principles of duty of care, proportionality, etc.) was appropriate, as it caused removal of unreasonable procedural formalism. However, in the present case, the problematic point of the procedure was originally not formal, but purely material, because the Applicant was not legaly identical to the holder of the trademark at the moment of submission of the Application.\r\n\r\nThat mistake could still have been corrected by the Complainant by indicating to the registry the fact that between submission of the Application and submission of documentary evidence, the Applicant and holder of the trademark became one legal entity (such evidence could have been submitted even additionally - see for example Panel decision No. 01071). Unfortunately, the Complainant failed to submit any evidence or indication of that kind.\r\n\r\nIt is beyond any doubt that if further investigation was taken by the Respondent, it would be possible to clarify that Complainant is entitled to claim its priority rights under Sunrise I requirements. The Panel applies principles of good administration, duty of care, proportionality and material truth to their highest possible extent stating that the Respondent can be found obliged to take such further investigation, but only in case when some doubts could prima facie arise over formal quality of the application (see Panel decisions No. 00253, No. 00830, 00325, and others). However, due to Complainant’s mistake at the moment of submitting the Application and omission at the phase of submitting the documentary evidence, there could have appeared no doubts over submitted application at Respondent, as the Applicant and the holder of the trademark were indisputably indicated in the Application as different legal entities.\r\n\r\nSumming up all relevant arguments regarding ad hoc application of principles of EC law, the Panel has to conclude that in the present case, it is appropriate to emphasize principles of concentration, vigilantibus iura and other principles of legal certainty. Such emphasis, namely on principles of concentration and vigilantibus iura, was also proclaimed in general for various domain procedures by numerous formulations of .eu domain legislation (for example rec. 12 and art. 14 of the Regulation (EC) 874\/2004, sec. 8, 9, 10, 21 of the Sunrise Rules and others) and so the Complainant and other entities involved in domain procedures could have from the beginning relied on their importance. Consequently, the Panel does not see the decision of the Respondent on rejection of the disputed Application as contrary to principles of EC law as claimed by the Complainant.\r\n\r\nAs circumstances of the case has lead the Panel to find the rejection of the disputed Application being in accordance with principles of EC law, the Panel can respectfully follow its recent practice regarding assessment of faulty or substantially deficient Applications submitted in Sunrise periods (Panel decisions No. 00119, No. 00294, No. 00551, No. 00810, No. 01194 and others) by stating that ADR is not to be understood as a procedure where the Applicant could later correct its own former substantial procedural mistakes. Thus, the only possible conclusion to be drawn ad hoc from all above arguments is dismissal of the complaint.",
    "decision": "For all the foregoing reasons, in accordance with Paragraph B12 of the Rules and Section 27 of the Sunrise Rules, the Panel orders that the Complaint is Denied.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-09-03 00:00:00",
    "informal_english_translation": "The Complainant contests the decision of rejection issued by the Respondent against its domain application \"FRISIA.EU\" under Sunrise I.\r\n\r\nRejection was based upon the fact that the documentary evidence supplied revealed a mismatch between the Applicant and holder of the trademark.\r\n\r\nThe Complainant claimed the rejection being against principles of EC law, namely principles of proportionality, duty of care and good administration.\r\n\r\nIntensity in which principles of law are applied depends on nature and circumstances of the case. In case of Sunrise registration, the procedure was designed, proclaimed and maintained as swift and formal. This together with the fact that defects of the Application were not purely formal but had material consequences, leads the Panel to ad hoc emphasize principles of concentration and vigilantibus iura over those claimed by the Complainant.\r\n\r\nThe Complaint is Denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}