{
    "case_number": "CAC-ADREU-002021",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On December 8, 2005 the Complainant applied for 3 domain names: <lohmann.eu>, <goethe.eu>, and mcr.eu>. On January 16, 2006, the Complainant’s documentation allegedly proving his ownership of corresponding and valid trade mark registrations in Germany for LOHMANN, GOETHE, and MCR was presented to the Validation Agent. However the Validation Agent rejected all 3 applications on the grounds that the applicant (Lohmann Innovations e.K) was not the same as the owner of the trade marks (Mr. Uwe Lohmann). \r\n\r\nThe Complainant argued that he is a registered entrepreneur (eingetragener Kaufmann) and that although the trade marks might have been registered in his own personal name, he and the “e.K” are the same person. Therefore the domain name applications were wrongly rejected. He filed with the Complaint, copies of a number of documents in support of his argument, in particular an extract from the Trade Register of the court of Hamburg; a Licence Agreement between Mr. Uwe Lohmann and Lohmann e.K. granting the latter an exclusive licence to use the 3 trade marks of the former; 3 Licence Declarations that confirm this; and several items showing use of the 3 trade marks.\r\n\r\nThe Respondent argued that the onus is on an applicant to demonstrate that he is the owner of a prior right claimed in an application during the Sunrise Period and, because Mr. Lohmann did not so demonstrate, the applications were correctly refused. The Respondent then quoted from a number of ADR Decisions which, it claimed, back up and confirm that this decision was correct. \r\n\r\nThe Respondent also noted that under the Sunrise Rules the Validation Agent has the discretion to make it own investigations into the circumstances surrounding the documentation provided by an applicant, but that it has no obligation to do so, and indeed can hardly be expected to make it own enquiries on every occasion when there is some doubt,. \r\n\r\nWith regard to the additional documents filed with the Complaint, the Respondent noted that the Regulation only permits the Validation Agent to examine documents received within 40 days of an application being filed and, as the additional documents referred to above were not received until June 23, 2006 while the 40 day period in this case expired on January 17. 2006 they should not be taken into consideration.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "The Facts\r\nLohmann Innovations (“the Complainant”) applied for the domain names <www.lohmann.eu>, <www.goethe.eu>, and <www.mrc.eu> (“the 3 disputed domain names”) on December 8, 2005. \r\n \r\nThe Validation Agent received the documentary evidence on January 16, 2006, which was before the January 17, 2006 deadline for doing so. \r\n \r\nThe documentary evidence consisted of copies of trade mark registrations for LOHMANN, GOETHE, and MRC which showed that these marks are all registered, not in the name of Lohmann Innovations, but in the name of Mr. Uwe Lohmann. \r\n \r\nThe Validation Agent concluded from this documentary evidence that the applicant had not demonstrated that it was the holder of the claimed prior rights. \r\n \r\nTherefore, the Respondent rejected the applications for the 3 disputed domain names. \r\n \r\nThe Complainant’s Contentions \r\nThe Complaint has been filed by Lohmann Innovations e.K. and contends that this name is nothing more than the name under which the Mr. Uwe Lohmann trades as a sole registered trader i.e. an “eingetragener Kaufmann”. \r\n \r\nTherefore, the Complainant contends that ‘Lohmann Innovations e.K’. and  ‘Uwe Lohmann’ are one and the same person. \r\n \r\nThe Complainant also submitted new documents in the form of a License Agreement signed between Lohmann Innovations e.K. and Mr. Uwe Lohmann, 3 corresponding Licence Declarations, an extract from the Trade Register of the Court of Hamburg dated February 27, 2006 showing that Lohmann innovations e.K. is registered under No. 103404 with, as its owner, Uwe Lohmann, a copy of  the packaging of a TV Monitor radio sold under this trademark LOHMANN,  a CD produced for and sold in the stores of German retailer OBI as well as an advertising DVD both bearing the trade mark MCR, and a picture of a beer bottle bearing the trademark GOETHE. \r\n\r\nAfter the initial Complaint, and after a Response had been filed, the Complainant filed an Additional Observation in which he pointed out that the applications for the 3 disputed domain names had all been signed by Mr. Uwe Lohmann in his capacity as a sole trade “Lohmann Innovations”. To prove this, copies of all 3 applications were attached.\r\n \r\nThe Complainant asks the Panel to annul the Respondent's decision because there was no legal ground for the rejection and to grant the 3 disputed domain names to it. \r\n \r\nThe Respondent’s Response \r\nThe Respondent contends that the documentary evidence filed initially did not demonstrate that the Complainant was the holder of a prior right because the Complainant's name is Lohmann Innovations e.K., while the owner of the trade marks is Mr. Uwe Lohmann. \r\n\r\nThe Regulation and the Sunrise Rules clearly provide that the burden of proof is on the applicant for a domain name to demonstrate that it is the holder of a prior right, but in this case the Complainant did not do so. \r\n \r\nWhen there is a difference between the name of the applicant and the name of the owner of the prior right, the applicant must submit official documents explaining why and how it is entitled to rely on a prior right which, in the face of the documentary evidence, belongs to someone else. \r\n \r\nIf the applicant fails to do so, its application must be rejected and the Respondent must then give the next applicant in line the opportunity to try to demonstrate its prior rights. During the Sunrise Period, the principle ‘first-come, first-served’ is indeed more properly described as ‘first-come-and-substantiate, first-served’. In other words, during the Sunrise Period, the first applicant in the line does not have an unconditional right to the domain name, but only has an opportunity to try to clearly demonstrate that it is the holder of a prior right. \r\n\r\nThe Legal Position\r\nThe Articles from Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“the Regulation”) and the Sections from the .eu Registration Policy and Terms and Conditions for Domain Name Applications made during the Phased Registration Period (“the Sunrise Rules”) that are relevant to this case are as follows:\r\n\r\nArticle 10 (1) of the Regulation states that only “Holders of prior rights recognised or established by national and\/or Community law …… shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts.” \r\n \r\nArticle 14 of the Regulation states, inter alia, that “[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. …… 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. …… The applicant shall submit the evidence in such a way that it shall be received by the validation agent within forty days from the submission of the application for the domain name. …… 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 set out in the second, third and fourth paragraphs”. \r\n \r\nSection 20.3 of 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 jure 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 21.2 of the Sunrise Rules 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 ……”\r\n\r\nSection 21.3 of the Sunrise Rules states that “The Validation Agent is not obliged, but 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\nDecision\r\nAs a preliminary point, the Panel sees no reason why the Complainant’s Additional Observation should not be taken into account. It was timely filed and appears to meet all of the necessary requirements.\r\n\r\nThe Panel considers that there are three issues to be decided in this case –\r\n1.\tWhether  Lohmann Innovation e.K. and Mr. Uwe Lohmann are indeed the same entity \r\nThe Panel is not a German lawyer and comes from a common law background so he has no personal knowledge of the legal status of an ‘eingetragener Kaufmann’. However, having made appropriate enquiries of those who do, as well as other persons practicing in civil law countries, he has concluded that in fact Lohmann Innovations e.K. is indeed just a pseudonym for Mr. Lohmann. The German Commercial Code quoted by the Complainant is applicable to anyone carrying out a commercial activity i.e. a ‘Kaufmann’.  It is open for anyone to register as a Kaufmann, but there is no obligation to do so and registration does not, in itself, create a new entity. There is no legal obligation to register, and the only reason why anyone should do so would be to ensure that he is subject to the Commercial Code. Consequently Mr. Uwe Lohmann is indeed no different from Lohmann innovations e.K.\r\n\r\nNevertheless it would seem that the Complainant does not entirely believe this himself. For example, although in all of the different parts of this Decision it is ‘Lohmann Innovations e.K.’ who has been referred to as ‘the Complainant’, in fact the Complaint was filed in the joint names of ‘Lohmann Innovations e.K.’ and ‘Mr. Uwe Lohmann’. Why, in the circumstances, was it necessary to distinguish between the two entities in this manner? Furthermore, the Complaint itself appears to confirm that Mr. Lohmann and the ‘eingetragener Kaufmann’ are different entities because filed with it was a copy of a Licence Agreement between the two. If they are one and the same, there was no need for any such Agreement, so why was it entered into?    \r\n \r\nThe Respondent quoted from the following the following three Decisions which, he argued, are relevant to this particular case: \r\n\r\nCase 1886 GBG.\r\n“According to the Procedure laid out in the Regulation the relevant question is thus not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right. If an applicant fails to submit all documents which show that it is the owner of a prior right the application must be rejected”. \r\n\r\nHowever this appears to be a misquotation. It is nowhere in the Decision for Case No. 1886 which relates to the filing, by an applicant, of a copy of his trader mark application rather than the registration. It is therefore not relevant to the present case.\r\n \r\nCase 810 AHOLD.\r\n“As confirmed by sec. 20 of SR, it is important to make sure that the applicant is the same holder of the prior rights, to avoid any domain name registration deprived of legitimation on the applicant’s side. As a result, when faced before a difference between the applicant name and the prior right holder name, correctly detected by the Validation Agent, the Registry may not accept the corresponding domain name application\". \r\n \r\nCase 1242 APONET.\r\n“Therefore, in the absence of any document clearly indicating that a) VGDA Gmbh was the short term for Verwaltungsgesellschaft Deutscher Apotheker mbH; b) that VGDA was also an official company name of the Applicant; and c) considering the Complainant’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 VGDA Gmbh and Verwaltungsgesellschaft Deutscher Apotheker mbH were the same entity, did not err in its decision to reject the Complainant's application. 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 Right claimed”.  \r\n\r\nBoth of these Decisions are good precedents, and furthermore the law is clear. Under Article 14 of the Regulation, an applicant for a domain name during the Sunrise Period must submit documentary evidence to prove that he is the true owner of a valid prior right corresponding to the domain name he has applied for. If there is any doubt, then under Section 20.3 of the Sunrise Rules, an applicant must submit further documentary evidence to resolve that doubt.\r\n\r\nTo an outsider, ignorant of the German Commercial Code, and moreover to the Panel, there is a difference between the applicant for the domain names (Lohmann Innovations) and the owner of the trade marks (Uwe Lohmann). Lohmann is, after all, not an especially uncommon name in Germany so it seems more than likely that the ‘Lohmann Innovations’ who is named as the applicant is different from the ‘Lohmann’ who signed the Application Form. In the opinion of the Panel, whoever filed the Documentary Evidence on January 16, 2006 should also have filed an explanation as to why the domain name applicant and the trade mark owner were the same because on the face of it they appeared to be different. There is actually an obligation to do this under Section 20.3 of the Sunrise Rules. However it was not done. Therefore the decision by the Validation Agent to reject the applications was legally correct. \r\n\r\n2.\tWhether the validation agent was obliged to investigate whether Lohmann Innovations and Mr. Uwe Lohmann are indeed the same entity \r\nAgain, in the opinion of the Panel, the law is clear on this point.\r\n \r\nUnder Section 21.3. of the Sunrise Rules, the Validation Agent is not obliged, but 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. As pointed out above, the onus is on an applicant to show that it is the holder of a prior right so, as the Respondent points out, this Section does not impose any obligation on the Validation Agent to conduct its own investigation: it is a mere possibility that EURid could use but at its sole discretion. \r\n \r\nAgain this is confirmed by the case law, and the Respondent quoted from three  allegedly relevant Decisions: \r\n\r\nCase 127 BPW\r\n“Section 21.3 of .eu Sunrise Rules reads that 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. Since the burden of proof was on the applicant (Complainant) who clearly failed to proof the ownership rights according to Section 21.3. of .eu Sunrise Rules it was on sole discretion of the Validation Agent to conduct its own investigation and it cannot be deemed as the breach of the Section 21.3 of .eu Sunrise Rules if he decided not to conduct any investigation. Summarizing the above stated, I did not find the contested decision to reject the application of the Complainant made by the Respondent in conflict with any of the European Union Regulations”.  \r\n\r\nCase  1323 7X4MED \r\n“Therefore, it cannot be reasonably anticipated that the validation agent (although it has the permission to do so pursuant to Section 21 (3) of the Sunrise Rules) would investigate into the circumstances of each and every domain name application where the documentary evidence submitted by the applicant does not comply with the requirements set forth by Sunrise Rules”. \r\n\r\nCase  501 LODE and PROCARE \r\n“In this case, the documentary evidence  in support of the applications for the Domain Names was incomplete in respect of the requirements set out in Section 20.1 of the Sunrise Rules.  The Panel accepts that the applicant should not expect the Registry or the Validation Agent to engage in its own investigations to establish the exact relationship between the registered holder of the trade mark and the applicant”.  \r\n\r\nCase 1443 URBIS \r\n“It is also necessary to point out that the validation agent\/Registry cannot be expected and\/or forced to speculate whether the Complainant is a holder of the prior right claimed”. \r\n \r\nThese are very clear precedents and the Panel has therefore concluded that the Validation Agent was perfectly justified in not doing anything to make further checks on the documentation filed by the Complainant or to investigate why the names on the documents did not match.  \r\n\r\n3.\tWhether the additional documentation filed by the Complainant can be   \r\naccepted.\r\nThe Complaint was filed on June 23, 2006 and with it the Complainant submitted new information in the form of the documents listed above under ‘The Complainant’s Contentions’.\r\n\r\nFurther additional documents were filed with the Additional Observation, namely copies of the 3 domain name Application Forms. The Complainant pointed out that these applications had all been signed by Mr. Uwe Lohmann, and one of the conditions of the Form (under all of which Mr. Lohmann has written “read and accepted”) is that it has to be signed by ‘the applicant or someone authorised to represent the applicant”. The Complainant argued that because of this signature it is clear that the domain name applications all belonged to Mr. Uwe Lohmann.\r\n\r\nHowever only the documentary evidence which the Validation Agent was able to examine at the time of its validation of the application can be considered as being relevant. Bearing in mind that the last date for the Complainant to file its proof of a prior right was January 17, 2006, it is quite clear to the Panel that the additional documents filed with the Complaint cannot now, at this stage, be accepted as evidence. There are several reasons for this –\r\n•\tAccording to Article 14 of the Regulation, EURid may only accept, as documentary evidence, documents that are received by the Validation Agent within 40 days from the submission of the application for the domain name. In this case, that period ended on January 17, 2006. \r\n•\tThe Extract from the Hamburg Court is dated February 27, 2006 and it appears to indicate that the registration was only made on February 3, 2006 which, again, is subsequent to January 17, 2006.\r\n•\tThe Licence Agreement is dated March 15, 2006 and the 3 Licence Declarations are all dated June 22, 2006, both dates being well after the due date of January 17, 2006.\r\n•\tThe examples of how the 3 trade marks are used add nothing to the case.\r\n•\tThe 3 Application Forms also add nothing. They state that the name of the applicant is “Lohmann Innovations” and the fact that they have been signed by Mr. Uwe Lohmann who, the Panel notes, identifies himself in the Box headed ‘Function’ as the “Markeninhaber” or as the owner of the corresponding trade mark, should have raised no doubts in the mind of the Validation Agent as he would expect the Form to be signed by someone authorised to act on behalf of the applicant. Despite the function selected by Mr. Lohmann for himself, the Validation Agent would have expected the documentary evidence to show either that the corresponding trade marks are registered in the name of Lohmann Innovations – which they are not – or an explanation for this difference – which was not forthcoming.\r\n\r\nThe Panel has considerable sympathy with the Complainant but, as he said in case 1393 (HANSA) “… the law is the law and rules are rules …” and in the present case there is a clear breach of the Law and the Rules. The Panel has therefore concluded, on the basis of the evidence and arguments submitted, that the Complaint should be denied.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\nthe Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-10-19 00:00:00",
    "informal_english_translation": "The Complainant filed a Complaint against the Respondent’s decision to reject its application for the 3 domain names: <lohmann.eu>, <goethe.eu>, and <mcr.eu>. The rejection was based upon the fact that the applications were made in the name of Lohmann Innovations but the 3 corresponding trade marks were all registered in the name of Mr. Uwe Lohmann. \r\n\r\nThe Complainant argued that he is a registered entrepreneur (eingetragener Kaufmann) and that although the trade marks might have been registered in his own personal name, he and the “e.K” are the same person. Therefore the domain name applications had been wrongly rejected. He filed copies of a number of documents in support of his argument.\r\n\r\nThe Respondent argued that the onus is on an applicant to demonstrate that he is the owner of a prior right claimed in an application during the Sunrise Period and, because Mr. Lohmann did not so demonstrate, the applications were correctly refused. \r\n\r\nThe Respondent also noted that under the Sunrise Rules the Validation Agent has the discretion to make it own investigations into the circumstances surrounding the documentation provided by an applicant, but that it has no obligation to do so, and indeed can hardly be expected to make it own enquiries on every occasion when there is some doubt,. \r\n\r\nWith regard to the additional documents filed with the Complaint, the Respondent noted that the Regulation only permits the Validation Agent to examine documents received within 40 days of an application being filed.\r\n\r\nHaving reviewed all the evidence, the Panel concluded that Lohmann Innovations is a pseudonym for Mr. Uwe Lohmann and that they are therefore one and the same. However there was a clear discrepancy between the name of the applicant for the domain names and the owner of the trade marks and in such a case an applicant has an obligation to file an explanation for any discrepancy together with the Documentary Evidence that has to be submitted within 40 days of a domain name application being made. In this case no such explanation was filed. Furthermore, not only was the Complaint made in the names of both Mr. Uwe Lohmann and Lohmann Innovations e.K. but there was also a Licence Agreement between them, both of which facts indicated that the Complainant himself believed the two to be separate and different. Also, since many of the documents filed with the Complaint were dated after the end of the above mentioned 40 day period they could not be accepted. \r\n\r\nAs a result, the Complaint was rejected.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}