{
    "case_number": "CAC-ADREU-001800",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Complainant in this administrative proceeding is Mr. Simon Hamberger, a natural person. His place of residence and his principal place of business is Remchingen, Germany. The Complainant runs a business in the field of IT services and consulting. The Complainant runs his business under the name “www-services”. This term is used by the Complainant as a trade name and is neither registered as a trade mark nor is it used as a Company name.\r\nComplainant is the holder of two Swedish word marks. The word mark “domain” registered under the Number 370993 and the word mark “vacation” registered under the number 375228. \r\nOn December 7, 2005, Complainant submitted two applications for the domain names «domain.eu» and «vacation.eu», respectively at 11:00:08.760 and 11:01:14.286. \r\nFrom EURid public database it appears that Complainant timely filed the related documentary evidence.\r\nEURid rejected Complainant’s applications for the disputed domain names. \r\nThe factual and legal grounds for both domain name applications are identical. Therefore this ADR-Dispute will refer to both applications at the same time.",
    "other_legal_proceedings": "None of which the Panel is aware.",
    "discussion_and_findings": "Discussion and Findings:\r\nComplainant in its complaint affirms that Complainant (Simon Hamberger) and the Applicant (www-services) are the same Entity, consequently the Applicant and Holder of prior rights are coincident, therefore EURid should have registered the disputed domain names in the name of this Entity i.e. Simon Hamberger\/www-services. In addition, whilst admitting that the validation agent might have been confused by the existing differences between the Applicant’s name, www-services and the Complainant’s name, Simon Hamberger, Complainant affirms that it would have been the validation Agent’s duty to investigate or at least to request further clarifications from the Applicant.\r\n \r\nEURid on the contrary affirms that Applicant www-services and Complainant Simon Hamberger are different entities. EURid therefore arguments that it would have been Applicant’s duty to clearly show and demonstrate through the documentary evidence what Applicant and Complainant relations were.\r\n\r\nThis Panel agrees with EURid's arguments and reasonings.\r\n\r\nIn fact, in both applications, www-services was indicated in the “Organisation” field. It is true that the name of Simon Hamberger was also indicated, nevertheless as clearly affirmed in section 3 (1) i of the Sunrise Rules: \" if the name of the company or the organisation is specified, then the company or organisation is considered the Applicant\". Section 2.3 of the .eu Domain Name WHOIS Policy, entitled Identifying Natural Persons and Legal Persons, repeats the same rule: \" If the 'Company' field is completed, it is assumed that the company is the Registrant\".  \r\nConsequently, the Documentary Evidence filed by the Applicant should have provided the Validation Agent with documents showing either that www-services was itself the holder of prior rights or that www-services and Simon Hamberger were the same Entity and therefore the holder of the Swedish word marks filed.\r\nWhile the principal obligations of EURid regarding its decisions to register .eu domain names during the phased registration period are regulated by Article 14 of the Public Policy Rules, the final paragraph of that Article states that EURid shall register the domain name on a first come, first served basis if it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in the second, third and fourth paragraphs of Article 14. In addition, article 12(1) of the Public Policy Rules requires EURid to publish a detailed description of all the technical and administrative measures that it shall use to ensure a proper, fair and technically sound administration of the phased registration period. Those measures are set out in the Sunrise Rules.\r\nIn this case, before rejecting Complainant’s application for the domain names domain.eu and vacation.eu, EURid should have verified whether or not the applicant was the holder of valid prior rights. In this case, whether the applicant was the holder of corresponding and valid registered trademarks i.e. DOMAIN and VACATION. In other words, EURid should have verified: a) whether Applicant was eligible to request the disputed domain names; b) whether the domain names applied for corresponded to a registered national or Community trademark; and c) whether the trademarks claimed as prior rights (i.e. DOMAIN and VACATION) were valid, namely in full force and effect.\r\n\r\nIt clearly appears that the trademarks indicated by Complainant in the Documentary Evidence are identical to the disputed domain names and that they were registered and valid on the date of Applicant's application for the disputed domain names.\r\nNevertheless, in the Documentary Evidence provided by the Applicant (i.e. the Swedish registration certificates), there is no reference to any entity named www-services even less  is there evidence that  www-services was the trademarks holder.\r\nIn fact, from the case file it appears that the domain names were applied for by www-services, while the copies of the two Swedish registration certificates for the trademarks Domain and Vacation indicate as their holder Mr. Simon Hamberger.\r\n\r\nIn Section 13 of the .eu Sunrise Rules – Registered Trademarks  (Documentary Evidence for Registered Trade Marks) it is affirmed that: «Unless otherwise provided .. omissis.. it is sufficient to submit the following Documentary Evidence for a registered trade mark: (i) a copy of an official document issued by the competent trade mark office indicating that the trade mark is registered… omissis .. In the foregoing case, the Documentary Evidence must clearly evidence that the Applicant is the reported owner of the registered trade mark.».\r\nIn Paragraph 2. Section 21 of the Sunrise Rules (Chapter VI. Examination of prior right claims)  it is  stated 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\nTherefore, in the absence of any document clearly indicating that a) www-services was the trade name used by Simon Hamberger and b) considering the Applicant's burden of proof with respect to its prior rights and wording of relevant provisions governing registration of .eu domain names in Sunrise Period, the Panel concludes that the Respondent, without having at its disposal any pertinent document proving that www-services and Simon Hamberger were the same entity, did not err in its decision to reject the Applicant's applications. On the contrary, this Panel considers that EURid, in accordance with, Paragraph 3. Section 11 of the Sunrise Rules, correctly considered the Applicant as a different entity from the holder of the Prior Rights claimed. \r\nThis ADR Panel finds that the decision taken by Respondent to reject Complainant’s application does not conflict with the Regulation 874\/2004.",
    "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": "2006-09-14 00:00:00",
    "informal_english_translation": "Complainant affirms that Complainant (Simon Hamberger) and the Applicant (www-services) are the same Entity, consequently the Applicant and Holder of prior rights are coincident, therefore EURid should have registered the disputed domain names in the name of this Entity i.e. Simon Hamberger\/www-services. \r\nEURid on the contrary affirms that Applicant www-services and Complainant Simon Hamberger are different entities. EURid therefore arguments that it would have been Applicant’s duty to clearly show and demonstrate through the documentary evidence what Applicant and Complainant relations were.\r\n\r\nThis Panel agrees with EURid's arguments and reasonings.\r\n\r\nIn fact, in both applications, www-services was indicated in the “Organisation” field. It is true that the name of Simon Hamberger was also indicated, nevertheless as clearly affirmed in section 3 (1) i of the Sunrise Rules: \" if the name of the company or the organisation is specified, then the company or organisation is considered the Applicant\". Section 2.3 of the .eu Domain Name WHOIS Policy, entitled Identifying Natural Persons and Legal Persons, repeats the same rule: \" If the 'Company' field is completed, it is assumed that the company is the Registrant\".  \r\nConsequently, the Documentary Evidence filed by the Applicant should have provided the Validation Agent with documents showing either that www-services was itself the holder of prior rights or that www-services and Simon Hamberger were the same Entity and therefore the holder of the Swedish word marks filed.\r\nIn this case, before rejecting Complainant’s application for the domain names domain.eu and vacation.eu, EURid should have verified whether or not the applicant was the holder of valid prior rights. In this case, whether the applicant was the holder of corresponding and valid registered trademarks i.e. DOMAIN and VACATION. In other words, EURid should have verified: a) whether Applicant was eligible to request the disputed domain names; b) whether the domain names applied for corresponded to a registered national or Community trademark; and c) whether the trademarks claimed as prior rights (i.e. DOMAIN and VACATION) were valid, namely in full force and effect.\r\n\r\nIt clearly appears that the trademarks indicated by Applicant in the Documentary Evidence are identical to the disputed domain names and that they were registered and valid on the date of Applicant's application for the disputed domain names.\r\nNevertheless, in the Documentary Evidence provided by the Applicant (i.e. the Swedish registration certificates), there is no reference to any entity named www-services even less is there evidence that  www-services was the trademarks holder. In fact, from the case file it appears that the domain names were applied for by www-services, while the copies of the two Swedish registration certificates for the trademarks Domain and Vacation indicate as their holder Mr. Simon Hamberger.\r\n\r\nTherefore, in the absence of any document clearly indicating that a) www-services  was the trade name used by Simon Hamberger and b) considering the Applicant's burden of proof with respect to its prior rights and wording of relevant provisions governing registration of .eu domain names in Sunrise Period, the Panel concludes that the Respondent, without having at its disposal any pertinent document proving that www-services and Simon Hamberger were the same entity, did not err in its decision to reject the Applicant's applications.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}