{ "case_number": "CAC-ADREU-001711", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Complainant has requested annulment of two decisions made by the Respondent, EURid, regarding the domain names and . The Complainant has further requested the disputed domain names to be either transferred or attributed to the Complainant.\r\n\r\nAdditionally, the Complainant has requested the Panel to order the Respondent to pay the costs of these ADR proceedings, including legal costs and ADR fees.\r\n\r\nEIRCOM.EU\r\n\r\nThe first disputed domain name was applied by a company Eircom Ltd registered in Ireland, during the first phase of the phased registration period, i.e. the Sunrise I period. By a decision of the Respondent, EURid, the application was accepted and the domain name granted to Eircom Ltd. The documentary evidence for the application consists of an extract from the official database operated by the Irish Patents Office, which shows that the applicant Eircom Ltd is the proprietor of an Irish trademark registration no. 134954 EIRCOM.\r\n\r\nThe Complainant is a company registered in the Netherlands. It is the proprietor of the trade name E&I&R&C&O&M registered at the Dutch Chamber of Commerce. The Complainant filed an application for the domain name based on their aforementioned registered trade name on the first day of the second phase of the phased registration period, i.e. the Sunrise II period, for which the documentary evidence was duly provided. However, since Eircom Ltd had already filed an earlier application, which was later accepted, the Complainant’s application could no longer lead to a registration.\r\n\r\nAIRCO.EU\r\n\r\nThe second disputed domain name was applied by the Complainant during the first phase of the phased registration period, i.e. the Sunrise I period. At the time of filing the application (4 February 2006) the Complainant had filed an application for the registration of the Benelux trademark AIR&CO for “Garens an draden voor textielgebruik” in international trademark class 23 and based its application on the said prior right. The said trademark application was filed on 3 February 2006 and the trademark wasregistered on 7 February 2006.\r\n\r\nThe Respondent, EURid, rejected the application filed by the Complainant and when requested by the Complainant to inform the reasons for the rejection, The Respondent stated that the Complainant’s prior right on the trademark AIR&CO was not a registered trademark right at the time of filing the application for the domain name , but instead a pending application for a trademark registration.\r\n\r\nThe Complaint regarding both of the above domain names and was filed on 7 June 2006. \r\n\r\nThe Respondent failed to comply with the deadline indicated in the Notification of Complaint and Commencement of ADR Proceeding for the submission of its Response. The Panel therefore considers the Response mainly for information purposes.", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings in relation to either of the disputed domain names and .", "discussion_and_findings": "First of all, the Panel states that the .eu Dispute Resolution Rules (the “ADR Rules”) and the Supplemental ADR Rules do not render the Panel any competence to order either of the parties of an ADR case to pay the other party’s ADR fees or legal costs in the ADR proceedings.\r\n\r\nEIRCOM.EU\t\r\n\r\nThe intention behind the Commission Regulation (EC) 733\/2002 on the implementation of the .eu Top Level Domain and the Commission Regulation (EC) 874\/2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration, as is evident from the recitals of the said regulations, has been to allow holders of legitimate and genuine prior rights to register domain names, which correspond to their proprietary rights.\r\n\r\nThe Article 19 (2) of the Commission Regulation (EC) 874\/2004 provides that “The registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in documentation which proves that such a right exists.” The Article 14 of the same Regulation provides 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.” \r\n\r\nIn accordance with the Section 21 (1) of the Sunrise Rules, the validation agent shall verify whether the official requirements for the documentary evidence and the requirement for the existence of a prior right to the name claimed by the applicant in the application is fulfilled. The Section 21 (3) goes on to provide that the validation agent is permitted to conduct its own investigations into the circumstances of the application, the prior right claimed and the documentary evidence produced.\r\n\r\nThe Panel finds that the main purpose of the Section 21 (3) of the Sunrise Rules has been to, reflecting the spirit of the Commission Regulations (EC) 733\/2002 and (EC) 874\/2004 allowing holders of legitimate and genuine prior rights to register domain names which correspond to their proprietary rights, allow the validation agent at his own discretion to correct obvious deficiencies in applications, when it is clear that the applicant is de facto a holder of a genuine prior right and has simply made a clear mistake in the information provided in the application. \r\n\r\nIt appears that Eircom Ltd had misunderstood the meaning of the “prior right on name“ field in the application and although it was a true holder of a legitimate and genuine right, had mistakenly provided wrong information on the said application field. \r\n\r\nOnce the documentary evidence was reviewed by the validation agent, the agent was able to determine that the applicant was the true holder of a prior right, which was identical to the domain name it had applied for. The valid right and its identical nature to the domain name applied were clear and evident from the documentary evidence the applicant provided to the validation agent. \r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to grant the domain name to Eircom Ltd was justified and rejects the Complaint with respect to the domain name .\r\n\r\nAIRCO.EU\r\n\r\nThe Article 12 (2) of the Commission Regulation (EC) 874\/2004 very clearly provides that “During the first part of phased registration only registered national and Community trademark may be applied as domain names.” The Sunrise Rules Section (1) (i) provides further that “Where the Prior Right claimed by an Applicant is a registered trademark, the trademark must be registered by a trademark office in one of the member states, the Benelux Trade Marks Office or the Office of the Harmonization in the Internal Market (OHIM), or it must be internationally registered and protection must have been obtained in at least one of the member states of the European Union.” and in Section 13 (1) (ii) that “A trademark application is not considered a prior right.”\r\n\r\nThe Complainant applied for the domain name during the first phase of the phased registration period, i.e. the Sunrise I period, based on its application for the Benelux trademark AIR&CO. At the time of filing the application the trademark was not yet registered, but instead only an application for a trademark registration.\r\n\r\nThe existence of unjust decisions made in error by the Respondent in other cases, in which the domain names have apparently been mistakenly granted to their applicant’s based on a trademark application alone as a prior right during the Sunrise I period, cannot be interpreted to mean that the Respondent would be obliged to repeat such errors.\r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and rejects the Complaint with respect to the domain name .", "decision": "For all the foregoing reasons, and in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\nthe Complaint is Denied \r\n\r\nin its entirety, with respect to both disputed domain names and .", "panelists": [ null ], "date_of_panel_decision": "2006-08-25 00:00:00", "informal_english_translation": "The Complainant requested annulment of two decisions made by the Respondent, EURid, regarding the domain names and . The Complainant further requested the disputed domain names to be either transferred or attributed to the Complainant.\r\n\r\nEIRCOM.EU\r\n\r\nThe domain name was applied by Eircom Ltd, during the first phase of the phased registration period, i.e. the Sunrise I period. By a decision of The Respondent, EURid, the application was accepted and the domain name granted to Eircom Ltd. The documentary evidence for the application consists of an extract from the official database operated by the Irish Patents Office, which shows that the applicant Eircom Ltd is the proprietor of an Irish trademark registration no. 134954 EIRCOM.\r\n\r\nThe Section 21 (3) of the Sunrise Rules provides that the validation agent is permitted to conduct its own investigations into the circumstances of the application, the prior right claimed and the documentary evidence produced. The Panel finds that the main purpose of the Section 21 (3) of the Sunrise has been to, reflecting the spirit of the Commission Regulations (EC) 733\/2002 and (EC) 874\/2004 providing for holders of legitimate and genuine prior rights to register domain names which correspond to their proprietary rights, allow the validation agent at his own discretion to correct obvious deficiencies in applications, when it is clear that the applicant is de facto a holder of a genuine prior right and has simply made a clear mistake in the information provided in the application. \r\n\r\nBased on the documentary evidence the validation agent received, he was able to determine that the applicant Eircom Ltd was the true holder of a prior right, which was identical to the domain name it had applied for. The valid right and its identity to the applied domain name were clear and evident from the documentary evidence the applicant provided to the validation agent. \r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to grant the domain name to Eircom Ltd was justified and rejects the Complaint with respect to the domain name .\r\n\r\nAIRCO.EU\r\n\r\nThe Article 12 (2) of the Commission Regulation (EC) 874\/2004 very clearly provides that “During the first part of phased registration only registered national and Community trademark may be applied as domain names.” The Sunrise Rules reflect the same rule with no exceptions. \r\n\r\nThe Complaint applied for the domain name during the first phase of the phased registration period, i.e. the Sunrise I period, based on its application for the Benelux trademark AIR&CO. At the time of filing the application the trademark was not yet registered, but instead only an application for a trademark registration.\r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and rejects the Complaint with respect to the domain name .", "decision_domains": [], "panelist": null, "panellists_text": null }