{
    "case_number": "CAC-ADREU-001728",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "WYDAWNICTWO JEZIERSKI (hereafter \"the Complainant\") applied for the domain names ANONSE and OFERTA on 3 February 2006. \r\n\r\nThe processing agent did receive the documentary evidence on 2 March 2006, which was before the 15 March 2006 deadline.\r\n\r\nThe documentary evidence for the domain name ANONSE consisted of a trademark registration on the name \"ANONSE\", registered on 24 October 1990. The documentary evidence did not contain any document substantiating that the Complainant had renewed the trademark registration after 10 years.\r\n\r\nThe documentary evidence for the domain name OFERTA consisted of a trademark registration on a figurative with the name OFERTA and the words \"Warszawski Tygodnik Bezpłatnych Ogłoszeń\", registered on 18 September 1997. The documentary evidence did not contain any document substantiating that the Complainant was the holder of a prior right on the name OFERTA alone.\r\n\r\nBased on the documentary evidence, the validation agent found that the Complainant did not demonstrate that it was the holder of prior rights for the domain names ANONSE and OFERTA. \r\n\r\nBased on these findings, the Respondent rejected the Complainant's application.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "The cases had to be decided within the following legal framework\r\n\r\nArticle 10 (1) of the Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\") states that: \"[h]olders of prior rights recognised or established by national and\/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts. Prior rights shall be understood to include, inter alia, registered national and community trademarks (…)\".\r\n\r\nArticle 10 (2) of the Regulation states 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 the documentation which proves that such a right exists\".\r\n\r\nPursuant to article 14 of the Regulation, \"[a]ll claims for prior rights under Article 10(1) and (2) must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists\". This provision further states that \"[e]very applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. (…)The relevant validation agent shall examine whether the applicant that is first in line to be assessed for a domain name and that has submitted the documentary evidence before the deadline has prior rights on the name. If the documentary evidence has not been received in time or if the validation agent finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this. (…) The Registry 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 (…)\".\r\n\r\nSection 11.3. of the Sunrise Rules states that : \"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\nSection 19 (2) of the Sunrise Rules states that a prior right claimed to a name included in figurative or composite signs (signs including words, devices, pictures, logos, etc.) will only be accepted if the sign exclusively contains a name or if the word element is predominant, and can be clearly separated or distinguished from the device element, provided that \"(a) all alphanumeric characters (including hyphens, if any) included in the sign are contained in the Domain Name applied for, in the same order as that in which they appear in the sign, and (b) the general impression of the word is apparent, without any reasonable possibility of misreading the characters of which the sign consists or the order in which those characters appear\".\r\n\r\nSection 21.2. of the Sunrise Rules states that \"[t]he 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 and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules\".\r\n\r\nI. The case regarding ANONSE\r\n\r\nIn the \"ANONSE\" case, the Complainant only submitted documentary evidence which showed that he has been the owner of a registered trademark \"ANONSE\" until October 2000. Any hint indicating that the Complainant renewed the trademark registration was missing. The question arises whether it was the task of the processing agent to ask for additional documents regarding the renewal. Such a duty is not foreseen in the Sunrise Rules. During the sunrise period, no deep examination of sources and documents other than the documentary evidence submitted is possible. Only obvious errors between the application and the documentary evidence could be have been considered and communicated by the validation agent, such as a difference between the street address of the applicant given on his application and that shown in the trademark certificate (ADR 253 - Schoeller), or a difference in legal form of the applicant mentioned in the application and in the documentary evidence (ADR 903 - SBK).\r\nHowever, it is clearly unreasonable to expect that the validation agent should examine more substantial discrepancies like whether or not the trademark which expired has been renewed (see ADR 219 - isl).\r\n\r\nThe Complainant now tried to prove that he has renewed the trademark registration. However, it s not the task of the ADR panels to examine these additional documents. The applicant should not be allowed to submit additional evidence after the expiration of the 40-day period mentioned in the Sunrise Rules (see ADR 1071 - essence). It is  not the role of ADR to verify whether the first applicant in the queue owns the prior right, no matter what documentary evidence was presented. Instead, the ADR has to check whether the validation agent and EURid acted reasonably under the circumstances (ADR 865 - hi). \r\n\r\nAs sufficient documentation was not submitted to the Registry within the 40 days period of Section 8 (5), Subsection 4 Sunrise Rules, and as the timely submitted evidence did not substantiate the prior right of the Complainant, the Panel held that the Registry was entitled to reject the application.\r\n\r\nII. The \"OFERTA\" case \r\nIn addition, the Complainant refers to problems in registering the \"OFERTA.eu\" domain. He referred to a trademark related to the verbal and graphic terms \"WARSZAWSKI TYGODNIK BEZPŁATNYCH OGŁOSZEŃ OFERTA\". These terms can be translated into English as \"Weekly\" (TYGODNIK) \"Free\" (BEZPŁATNYCH, \"Bulletin Board\" (OGŁOSZEŃ) Offer (OFERTA) from Warsaw (WARSZAWSKI). All these terms are generic terms in Polish language. In their combination, the terms form the title of a weekly free magazine from Warsaw where sale and service offers can be read.  The term \"oferta\" is in itself descriptive. It is not predominant and does not characterize the whole trademark. \r\n\r\nFurthermore, it has to be taken into consideration that it is not the task of the validation agent to check the distinctive character of the various elements of the trademark. With the exception of the alphanumeric elements (see 11 of the Regulation), the domain can only consist of the complete name of the prior right on which the application is based (art. 10 (2) of the Regulation. \r\n\r\nFinally, the Complainant cannot argue that he has a commercial name \"OFERTA\" which can be used a prior right within the Regulation. During the sunrise period, only registered trademarks , geographical indications and the public body names may be applied for as domain names (art. 12(2) of the Regulation).",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the Complaints are denied.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-09-14 00:00:00",
    "informal_english_translation": "The Complainant contested the rejection by the Respondent of its application for two domain names within the first phase of the Sunrise Period.\r\n\r\nThe rejection by the Respondent was based on the fact that the Complainant did not submit evidence in the renewal of the trademark registration and that he cannot claim to get a domain name which only consists of a small part of the registered trademark. \r\n\r\nAlthough the Complainant now tried to submit new evidence regarding the renewal of his  trademark right, the Panel found that the Registry was entitled to its decision to reject the application.As the Complainant did not provide the Registry with Documentary Evidence within the 40 days deadline of Section 8 (5), Subsection 4 Sunrise Rules, the Documentary Evidence presented by the Complainant´s registrar during the Sunrise period was regarded incomplete and not sufficient to prove the claimed prior right of the Complainant. \r\nThe Panel also held that it is not the task of the validation agent to engage in the appreciation of the distinctive character of the various elements of the trademark. In general the domain name applied has to consist of the complete name of the prior right on which the application is based.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}