{
    "case_number": "CAC-ADREU-002046",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On December 7, 2005, the Complainant filed a request for registration of the domain name <postbank.eu> in the name of ING Groep N.V. and on January 16, 2006, the processing agent received documentary evidence which was submitted electronically by the Complainant’s registrar. The submitted electronic file was corrupt and the validation agent was not able to open and\/or review the content of the electronic file.\r\n\r\nSince the content of the submitted electronic file could not be accessed, the Respondent had no documentary evidence to assess the prior right of the Complainant.\r\n\r\nOn May 17, 2006, the Respondent rejected the request for registration on the grounds that the documentary evidence received did not sufficiently prove the right claimed.\r\n\r\nThe Complainant filed a Complaint via e-mail and telefax on June 27, 2006. The Czech Arbitration Court (“CAC”) acknowledged receipt of the Complainant on July 10, 2006. On July 18, 2006, CAC informed the Complainant of a discrepancy between the hard copy and the electronic Complaint and that signed hardcopies of the Complaint were missing and that the registrar with whom the disputed domain name was registered had to be identified.  On July 25, 2006 CAC received the Complaint in hardcopy and after the compliance review, CAC declared that the formal date of the commencement of the ADR proceeding was July 25, 2006.\r\n\r\nThe Respondent submitted a Response on September 13, 2006. \r\n\r\nThe Respondent requested a three-member panel and on September 29, CAC appointed the panellists in order to prepare a decision.",
    "other_legal_proceedings": "There are no other legal proceedings of which the Panel is aware that are pending or decided and that relate to the disputed domain name.",
    "discussion_and_findings": "In this case the Complainant submitted an electronic pdf file to the processing agent on January 16, 2006, which was the deadline for filing evidence. The electronic file could not be opened and therefore it was impossible for the processing agent to assess applicant’s right to the domain name <postbank.eu>. The Complainant has argued that the file could have been corrupted during transmission or on arrival with EURid. From the submitted evidence it is impossible for the panel to conclude the reason why the submitted pdf file was corrupt.\r\n\r\nDue to the fact that the Respondent was unable to open or view the submitted documentary evidence, the Respondent had no documentary evidence or any other material to review. Therefore, the Respondent rejected the Complainants application for the domain name <postbank.eu>.\r\n\r\nLater, in the ADR proceeding, the Complainant submitted a trademark extract from the Benelux Trademark Office for the trademark POSTBANK. The submitted trademark extract indicates that the owner of the trademark is indeed the Complainant, ING Groep N.V.\r\n\r\nThe question here is whether the Registry’s decision to reject the Complainant’s application for the domain name <postbank.eu> was correct or not.\r\n\r\nThe purpose of the Commission Regulation (EC) No 874\/2004 is to grant domain names during the Sunrise period on first come first served basis provided that an Applicant can demonstrate a right which makes him entitled to the domain name application. According to paragraph 4 of Article 14 of the said Regulation, every Applicant shall submit documentary evidence that shows that he or she is the holder of the Prior Right claimed in question and if such documentary evidence has not been received within forty days from the domain name application, the application for the domain name shall be rejected.\r\n\r\nFurthermore, according to the .eu Registration Policy and the Terms and Conditions for Domain Name Applications made during the Phased Registration Period (“Sunrise Rules”) under Section 5(2) it states that the Applicant may appoint a document handling agent by indicating the e-mail address of the document handling agent in the application. In Section 5(3) it states that “The Registry, Validation Agents and the Government Validation Points are not party to the agreement between the Applicant and his Registrar or to the agreement between the Applicant and his Document Handling Agent and therefore cannot incur any obligation or liability under these agreements”.\r\n\r\nSection 8 (6) of the Sunrise Rules states that it is the sole responsibility of the Applicant to ensure that all requirements for documentary evidence in Section 8 are complied with and that any documentary evidence sent to the processing agent by a third party in the name and on behalf of the Applicant is deemed to have been sent by the applicant.\r\n\r\nSection 9(2) of the Sunrise Rules states that the processing agent may, via the Registry, request the Applicant to submit a new set of documentary evidence if the original documentary evidence received is accidentally damaged or destroyed during or after transmission thereof. From the wording in Section 9(2) it is evident that the processing agent is permitted in its sole discretion to request a new set of documentary evidence if the original evidence is damaged or destroyed during transmission, but is not obliged to do so. \r\n\r\nIn the light of the foregoing the Panel finds that it is the responsibility of the Applicant (Complainant) of the domain name to ensure that all requirements concerning the documentary evidence are complied with and that the burden of proof for demonstrating a prior right during the phased period lies with the applicant. EURid and the validation agent have to rely upon the documentary evidence submitted by the Applicant and in the present case, it was clear that the validation agent was unable to open or view the corrupt electronic pdf file which allegedly contained the documentary evidence. Thus, the Complainant failed to submit the relevant evidence demonstrating the prior right within the forty day period set out in Article 14 of the Regulation. \r\n\r\nIf there would be exceptions in favour of the Applicant, allowing additional submissions of evidence after the forty day period, it would affect the legitimate expectancy of the next Applicant in the queue for the domain name in question and conflict with the first come first served principle set out in Article 14 of the Commission Regulation (EC) No 874\/2004.\r\n\r\nConsequently, the panel is of the opinion that the Respondent’s decision to reject the Complainant’s application on the grounds that the submitted documentary evidence did not sufficiently prove the right claimed does not conflict with the European Regulations Nos 874\/2004 and 733\/2002.",
    "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": "2006-10-27 00:00:00",
    "informal_english_translation": "ING GROEP N.V. applied for the disputed domain name during the phase one of the Sunrise Period, stating, as prior right, the ownership on a national trademark registered in Benelux. The Complainant submitted the requested documentary evidence electronically via its registrar.\r\n\r\nThe validation agent was not able to open the electronic file in which the asserted documentary evidence was enclosed since the electronic file was corrupted. The registry rejected the Complainant’s application for registration of the domain name.\r\n\r\nIn the case at hand, the panel had to consider whether the registry’s decision to reject the Complainant’s application for the contested domain name was correct or not.  \r\n\r\nIt is the panel’s opinion that the decision taken by the registry does not conflict with the relevant EC-Regulations and as stated in previous cases, the burden of proof is always and entirely on the Complainant’s side.\r\n\r\nIn other words, it is up to the Complainant to demonstrate the existence of the prior right claimed and, if the relevant evidence is furnished by way of a corrupt electronic file, the consequence is the clear impossibility for the validation agent of verifying the existence of the prior right claimed.\r\n\r\nFurthermore, it must be considered that, under Section 9(2) of the Sunrise Rules, the processing agent is permitted in its sole discretion to request a new set of documentary evidence if the original evidence is damaged or destroyed during transmission, but is not obliged to do so. \r\n\r\nIn the case at hand, the validation agent had no documentary evidence for assigning the domain name to the Applicant, first in the queue for the domain name <postbank.eu>.\r\n\r\nThe evidence related to the ownership of the prior right claimed by the Complainant was readable only in the framework of the ADR proceeding and, therefore, too late to be considered since the documents which serves as evidence in order to substantiate a prior right must be submitted within the period of 40 days from the submission of the application .\r\n\r\nTherefore, since the Respondent complied with all the relevant rules and regulations in rejecting the domain name application in the name of ING GROEP N.V, the panel concluded that the Respondent’s decision was correct and therefore dismissed the Complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}