{
    "case_number": "CAC-ADREU-002012",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "EITO EEIG European Information Technology Observatory applied in the Sunrise 1 period and based its application in its trademark “EITO”, registered as Community Trademark no. 00 23 84 675. \r\n\r\nOn 25 May 2006 EURid rejected the application. \r\n\r\nThe reasons stated by EURid for rejecting the application were the following: \r\n\r\nIn an e-mail of 29 May 2006, EURid wrote, that the domain name applied for was “eito.eu” whereas the trademark name the application was based on was “EITO EEIG European Information Technology Observatory” and in that respect the domain name did not correspond with the prior right. \r\n\r\nFurther when the complainants legal representative addressed EURid for the explanation for the rejection in order to start an ADR-procedure EURid answered in an e-mail of 29 June 2006, stating that there was no proof submitted that the Applicant is the same as the holder of the prior right as the names and the addresses did not match.\r\n\r\nThe Applicant's name and address were:\r\n\r\nPeter Carola\r\nEITO EEIG\r\nHahnstrasse 70\r\n60528 Frankfurt\r\nDeutschland\r\n\r\nThe trademark holder's name and address were:\r\n\r\nEITO EEIG European Information Technology Observatory\r\nUhlandstr. 52\r\nD-60314 Frankfurt am Main\r\nDE\r\n\r\nOn 3 July 2006 the Complainant filed a complaint against EURid ordering that the EURid decision be annulled and the domain name eito.eu be registered in the name of EITO EEIG European Information Technology Observatory.\r\n\r\nBelow are the parties contentions as recieved by the parties with smaller adjustments and without attachments.",
    "other_legal_proceedings": "None that the Panel is aware of.",
    "discussion_and_findings": "The Complainant and Respondent both agrees upon the fact that the Complainant made a mistake in filling out the \"Name for which the prior right is claimed\"-field.\r\n\r\nThe field was filled with the text \"EITO EEIG European Information Technology Observatory\" and in fact the prior right claimed was \"EITO\" in compliance with the domain name applicated for eito.eu.\r\n\r\nIn the first explaining e-mail from the Respondent to the Complainant of  29 May 2006 this was the reason for rejection.\r\n\r\nLater in the second explaining e-mail from the Respondent to the Complainant of 29 June 2006 the reason was that no proof submitted showed that the Applicant is the same as the holder of the prior right as the names and the addresses did not match.\r\n\r\nThe Respondent has in such changed its grounds for its decision which ground has been maintained under this ADR-proceeding, thus the first reason for rejection will not be taken further into account in this decision.\r\n\r\nThe Panel notes that in the Panel's view and in accordance with the cases ADR 229 \"CITY, KICKBOXING, CRAWLER, BLUE\" and ADR 328 \"LAST-MINUTE\" such discrepancies is not in direct violation of the Commission Regulation No. 874\/2004 (EC) or with the Regulation (EC) No. 733\/2002 escpecially provided that the submitted documentary evidence provides for a sufficient and meaningful evidence for the existence of the prior right claimed and the correct ownership og license hereof.\r\n\r\nThe relevant issue left to discuss is therefore in its essence the following:\r\n\r\nDoes the fact that the Applicant was filled in as:\r\n\r\nEITO EEIG\r\nHahnstrasse 70\r\n60528 Frankfurt\r\nDE\r\n\r\nand the fact the the trademark holder´s name and address were:\r\n\r\nEITO EEIG European Information Technology Observatory\r\nUhlandstr. 52\r\n60314 Frankfurt am Main\r\nDE\r\n\r\nTogether with the documentation at hand (including the cover sheet) constitute a sufficient reason for the Validation Agent and in that respect later the Respondent to reject the application for the domain name i question?\r\n\r\nFurther it is relevant to notice that the Applicant by mistake (though) actually in the \"Name for which the prior right is claimed\"-field on the cover sheet had wrote: \"EITO EEIG European Information Technology Observatory\".\r\n\r\nThis is relevant in according to the further below mentioned investigation and the expected extent hereof. \r\n\r\nIn the Commission Regulation No. 874\/2004 (EC) Article 14 “Validation and registration of applications received during phased registration” states: “All 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.”  and  “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.”  and  “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.”  and  “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 set out in the second, third and fourth paragraphs.”  \r\n\r\nIn accordance herewith Section 13(2) in the Sunrise Rules states regarding registered trademarks that “…Documentary Evidence must clearly evidence that the Applicant is the reported owner of the registered trademark. In case the Applicant is a licensee or transferee of a registered trade mark referred to in Section 13(1) above, Section 20 hereof shall apply.”  \r\n\r\nThese wordings clearly places the burden of proof upon the applicant and being in principle a strict one as also stated in ADR 219 \"ISL\" and generally accepted through out the ADR-panels.  \r\n\r\nSection 20(3) in the Sunrise Rules states that “If, for any reasons other than as are referred to in Section 20(1) and 20(2) hereof, the Documentary Evidence provided does not clearly indicate the name of the Applicant as being the holder of the Prior Right claimed (e.g. because the Applicant has become subject to a name change, a merger, the Prior Right has become subject to a de iure transfer, etc.), the Applicant must submit official documents substantiating that it is the same person as or the legal successor to the person indicated in the Documentary Evidence as being the holder of the Prior Right.”  \r\n\r\nSection 21 “Examination by the Validation Agent” states that the 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\nFurther section 21(3) in the Sunrise Rules states: “The Validation Agent is not obliged, but it is permitted in its sole discretion to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced.”  \r\n\r\nThe Validation Agent is thus not obliged to conduct any further investigations.\r\n\r\nThe Panel accepts that \"sole discretions\" as long as a discretion (whether or not to conduct further investigations) has been made should only carefully be revised and judged upon. \r\n\r\nAs in such any deviation from this main rule - being the Validation Agent's \"sole discretion\" - must in this Panels opinion be duly explainable from the following 3 cummulative arguments:\r\n\r\nThe documentation's discrepancies and mistakes must be:\r\n\r\n1) of immaterial nature, hence the prior right must in fact exist and in fact belong to or licensed to the Applicant, and be\r\n\r\n2) obvious to a bonus pater examiner, and be\r\n\r\n3) easily repaired by the Validation Agent within a few minutes \"at hand\"-investigations (searching on the Applicants name and address on the Internet, easily free of charge accessable trademark databases etc. - not having to initiate informational contact to the Applicant)\r\n\r\nThis \"test\" constitutes what could be called the \"minimum of fairness\" which the relevant Regulations and Rules should allow in order maintain the strict and formal requirements without taking this to an extent of being unreasonable.\r\n\r\nThis said it is a sure thing that a lot of the Validation Agents have handled their validation work with the highest degree of a strict approach in accordance with the clear wording of the Regulations and the Rules and perhaps also due to instructions given from their employer and with respect to secure a cost-effective and smooth system. These reasons are fair from that point of view and in such the Validation Agents have been left on \"thin ice\" due to the lack of guidelines in the Regulations as to how and what the discretion could and should take into account.\r\n\r\nThe Panel however does not feel that this test opens for a \"gate of random decisions\" as the mentioned required arguments should be fairly useful and suitable for the most cases in question regarding the applications and the submitted documentation in the Sunrise Periods.\r\n\r\nSeveral cases has dealed with similar issues as this case and here follows a short presentation of some of the decisions as also listed in the ADR 843 \"STARFISH\":\r\n\r\nOSCAR (181) – mistake due to technical matters regarding the length of the applicant’s name, thus the rejection by EURid was annulled.  \r\n\r\nCOLT (294) – mistake in the licensor’s name which differed from the name of the right holder’s as a result of translation to English, thus the complaint was denied.  \r\n\r\nDMC (232) – mistake in the name of the applicant’s name which differed from the right holder’s name as an explainable result of the Austrian Law, hence the law within a member state in the EC, which the Panel found that the Validation Agent should be expected to know (argument 21), thus the rejection by EURid was annulled.  \r\n\r\nISABELLA (984) – Applicant’s name differed from the right holders name but the addresses where the same and a quick research could state that the company operated and had registered several company names in which the applicant’s name seemed to be a confused mix of those. Nevertheless the complaint was denied as there were no technical or obvious mistakes which should have put EURid on notice as to the need to make further enquiries.  \r\n\r\nBPW (127) – The documentary evidence did not show that the applicant was the owner of the trade mark, thus the complaint was denied.  \r\n\r\nSCHOELLER (253) – Mistake in the name of the applicant\/right holder due to technical matters, mistake in addresses of the applicant\/right holder but same city and one simple search would have cleared the mistakes made, thus the rejection by EURid was annulled.  \r\n\r\nULTRASUN (541) – Applicant’s name differed from the right holders name. The right holder was the applicant’s parent company. The complaint was denied.  \r\n\r\nCAPRI (984) – Applicant’s name differed from the right holder’s name. The Panel\/the Panelist therefore tested that the validation of the application could have been done easily and properly towards correct verification of the data provided by the complainant\/the applicant, thus EURid rejection was annulled. \r\n\r\nSTARFISH (843) - Name of the trademark holder and the licensor was the same but the address differed in the trademark registration and the license agreement which showed two different jurisdictions, thus the majority of the Panel found that it was not easily recognized that the trademakr holder and the licensor was in fact the same legal person.\r\n\r\nIn the present case the Complainant's name is: \r\n\r\nEITO EEIG European Information Technology Observatory\r\n\r\nThe Applicant was filled in as just:\r\n\r\nEITO EEIG\r\n\r\nThe addresses differed but were still in the same town being Frankfurt, Germany.\r\n\r\nThe Panel would like to address the term \"EEIG\" which is the abbreviation for European Economic Interest Grouping (EEIG), a for most relative and rather unknown legal form for a company.\r\n\r\nThe legal basis for the EEIG is the EC Regulation No. 2137\/85, which has been published in the Official Journal of the European Communities L 199, 31st July, 1985. The German legislation adopted the EWIV-Ausführungsgesetz (EEIG Implementation Law) from 14th April, 1988, which was published on 22nd April, 1988 in the Bundesgesetzblatt I (German Official Journal). \r\n\r\nAccording to the German implementation law groupings could be registered in Germany  - the country of issue in this case - after the 1st July, 1989.\r\n\r\nStatistics shows that in Germany in average 10-20 EEIGs are founded each year since the past 10 years. \r\n\r\nAccording to Article 5 in the EC Regulation No. 2137\/85 it is stated:\r\n \r\nA contract for the formation of a grouping shall include at least: \r\n\r\n(a) the name of the grouping preceded or followed either by the words 'European Economic Interest Grouping' or by the initials 'EEIG', unless those words or initials already form part of the name; \r\n\r\nArticle 25 further states:\r\n\r\nLetters, order forms and similar documents must indicate legibly: \r\n\r\n(a) the name of the grouping preceded or followed either by the words 'European Economic Interest Grouping' or by the initials 'EEIG', unless those words or initials already occur in the name; \r\n\r\nHence, EEIG is a legal form for a type of company established and recognized witin the EC.\r\n\r\nThe term \"EEIG\" is existing in both the Applicant's filled in name and in the trademark holder's name.\r\n\r\nRemowed it leaves the two names to be: \"EITO\" vs. \"EITO European Information Technology Observatory\".\r\n\r\nIt is fairly obvious that EITO seems to be the abbreviation of European Information Technology Observatory, which indeed indicates a relevant connection between the Applicant and the Complainant.\r\n\r\nThe fact that the addresses are both placed in the same city, Frankfurt, Germany gives a reasoned nourish to this presumption.\r\n\r\nTaking a glance at the cover sheet submitted together with the documentation (the Panel agrees that documents only submitted under the ADR-proceeding should not be taken into account) the \"Name for which the prior right is claimed\"-field did in fact - although by mistake - show \"EITO European Information Technology Observatory\" giving further and stronger evidence for the mistake at hand. EURid did actually see this as this was a part of the first reasoned rejection.\r\n\r\nShould the Validation Agent still - despite the said findings - be of the understanding and impression that the discrepansies were due to the possibility of a licensor\/licensee relation both based in the same country and city with almost identical company names, then a quick search on the Internet would easily help clear this matter up.\r\n\r\nA quick search - a couple of seconds - on the Internet using the well known search engine Google (www.google.com) places the Complainant as the first search result when the search term \"EITO EEIG\" is used.\r\n\r\nIn fact the extracted text automatically generated by Google in connection to the found link is:\r\n\r\n\"European Information Technology Observatory – EITO EEIG. Hahnstrasse 70, 60528 Frankfurt, Germany. Phone +49\/69\/242416-0, fax +49\/69\/242416-16, ...\"\r\n\r\nThe prior right claimed in this case and the documentation submitted was a Community Trade Mark (CTM). \r\n\r\nA quick search in the easily accessable OHIM database for \"EITO\" also shows that the registered owner is:\r\n\r\nName:  EITO EEIG European Information Technology Observatory \r\nID No: 124524 \r\nNatural or legal person:  Legal entity \r\nAddress:  Hahnstr. 70 \r\nPost code:  60528 \r\nTown:  Frankfurt \r\nCountry: GERMANY \r\n\r\nBased on the findings in this specific case this Panel - using the above mentioned \"3-step-test\" - believes that the Validation Agent in these circumstances should have conducted just the simplest investigations which would have easily and quickly revealed the minor mistakes made by the Applicant\/Complainant and corrected these.\r\n\r\nTherefore the Panel believes that the Complainant has brought sufficient evidence before the Validation Agent to comply with Article 14 of the Regulation No. 874\/2004 (EC).",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) of the Rules, the Panel orders that\r\n\r\nthe EURID's decision be annulled\r\n\r\nand\r\n\r\nthe domain name EITO be transferred to the Complainant",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-10-08 00:00:00",
    "informal_english_translation": "EITO EEIG European Information Technology Observatory applied in the Sunrise 1 period and based its application in its trademark “EITO”, registered as Community Trademark no. 00 23 84 675. \r\n\r\nOn 25 May 2006 EURid rejected the application. \r\n\r\nThe reasons stated by EURid for rejecting the application were the following: \r\n\r\nIn an e-mail of 29 May 2006, EURid wrote, that the domain name applied for was “eito.eu” whereas the trademark name the application was based on was “EITO EEIG European Information Technology Observatory” and in that respect the domain name did not correspond with the prior right. \r\n\r\nFurther when the complainants legal representative addressed EURid for the explanation for the rejection in order to start an ADR-procedure EURid answered in an e-mail of 29 June 2006, stating that there was no proof submitted that the Applicant is the same as the holder of the prior right as the names and the addresses did not match.\r\n\r\nThe Applicant's name and address were:\r\n\r\nPeter Carola\r\nEITO EEIG\r\nHahnstrasse 70\r\n60528 Frankfurt\r\nDeutschland\r\n\r\nThe trademark holder's name and address were:\r\n\r\nEITO EEIG European Information Technology Observatory\r\nUhlandstr. 52\r\nD-60314 Frankfurt am Main\r\nDE\r\n\r\nIn the \"Name for which the prior right is claimed\"-field on the cover sheet the Applicant\/Complainant had wrote: \"EITO EEIG European Information Technology Observatory\".\r\n\r\nOn 3 July 2006 the Complainant filed a complaint against EURid ordering that the EURid decision be annulled and the domain name eito.eu be registered in the name of EITO EEIG European Information Technology Observatory.\r\n\r\nThe Panel introduced a cummulative 3-step-test in order to examine and judge whether or not the discretion by the Validation Agent was duly and fairly made.\r\n\r\nThe documentation's discrepancies and mistakes must in the Panel's view be:\r\n\r\n1) of immaterial nature, hence the prior right must in fact exist and in fact belong to or licensed to the Applicant, and be\r\n\r\n2) obvious to a bonus pater examiner, and be\r\n\r\n3) easily repaired by the Validation Agent within a few minutes \"at hand\"-investigations (searching on the Applicants name and address on the Internet, easily free of charge accessable trademark databases etc. - not having to initiate informational contact to the Applicant)\r\n\r\nThis \"test\" constitutes what could be called the \"minimum of fairness\" which the relevant Regulations and Rules should allow in order maintain the strict and formal requirements without taking this to an extent of being unreasonable.\r\n\r\nBased on the findings in this specific case this Panel - using the above mentioned \"3-step-test\" - believes that the Validation Agent in these circumstances should have conducted just the simplest investigations which would have easily and quickly revealed the minor mistakes made by the Applicant\/Complainant and corrected these.\r\n\r\nTherefore the Panel believes that the Complainant has brought sufficient evidence before the Validation Agent to comply with Article 14 of the Regulation No. 874\/2004 (EC).\r\n\r\nThe Panel therefore ordered:\r\n\r\nEURID's decision be annulled\r\n\r\nand\r\n\r\nthe domain name EITO be transferred to the Complainant",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}