{
    "case_number": "CAC-ADREU-002094",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "1.\tThe Complainant is Deborah Group B.V., a company registered in the Netherlands.  It applied for each of the domain names deborah.eu, bio-etyc.eu and rougebaiser.eu (“the Domain Names”) on 24 February 2006.  It provided documentary evidence in support of those applications by 27 February 2006 and 1 March 2006, within the Phased Registration Period.  \r\n2.\tThe documentary evidence submitted by the Complainant in support of the applications consisted in each case of a trademark (DEBORAH, BIO-ETYC or ROUGE BAISER) registered in the name of Deborah Cosmetics B.V.  EURid, the Respondent, rejected each application on 22 or 23 May 2006, on the basis that the Applicant was not the owner of the trademark relied upon in support of the application.\r\n3.\tThe Complaint seeking the annulment of EURid's decisions was filed on 30 June 2006.  Following the correction of a couple of technical deficiencies, the formal date of commencement of the ADR proceedings was 25 August 2006.  The Respondent responded on 11 October 2006.  \r\n4.\tOn 11 October 2006 Robert Elliott was appointed panelist in the matter (“the Panel”), having filed the necessary Statement of Acceptance and Declaration of Impartiality and Independence",
    "other_legal_proceedings": "None of which the Panel is aware",
    "discussion_and_findings": "18.\tAs the Respondent has pointed out in its Response, the majority of the issues which arise in this Complaint have already been considered on a number of occasions by Panelists in other ADR cases.\r\n19.\tIn this case, the facts are clear and not disputed.  The evidence filed by the Complainant in support of its original applications for each of the three Domain Names established Prior Rights, but in the name of a company called Deborah Cosmetics B.V.   That company changed its name in October 2002 to Deborah Group B.V., the Complainant.  The company name Deborah Group B.V. appears on records which could have been provided in support of the original applications as being the holder of relevant rights, but the evidence was not provided until the Complaint was filed.  Therefore, the Validation Agent in respect of each of the Domain Names had before it evidence which did not, on its face, support the entitlement of the Complainant to the Domain Names.  The name “Deborah Cosmetics B.V.” is clearly different from “Deborah Group B.V.”.  Although it appears that the addresses in question are the same, there is nothing else to suggest to the Validation Agent that the companies are anything other than separate corporate entities.  The differences between the names are not insignificant.  They are not mere typographical errors.  \r\n20.\tAn application on the basis of a claimed Prior Right under Article 10(1) of the Regulation must be verifiable, according to Article 14 of the Regulation, by documentary evidence which demonstrates the right under the law by virtue of which it exists.  Under Article 12(1) of the Regulation the Respondent was to publish on its website two months before the beginning of the Phased Registration Period a detailed description of the technical and administrative measures that it shall use to ensure proper, fair and technically sound administration of the Phased Registration Period.  Pursuant to that requirement, the Respondent published the Sunrise Rules.  Section 20(3) of the Sunrise Rules provides that, where it is not a case of an Applicant being a licensee or transferee, and “the Documentary Evidence provided does not clearly indicate the name of the Applicant as being the holder of the Prior Right claimed (eg 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\n21.\tAlthough the task of the Panel is to decide whether the Respondent’s decision conflicts with the Regulation or with Regulation (EC) number 733\/2002, and not specifically the Sunrise Rules, the Panel considers that the Regulation itself puts the onus upon the Applicant to demonstrate that it is the holder of the Prior Rights relied upon, and that the technical and administrative measures established in the Sunrise Rules do not in this respect contradict the Regulation itself, but clarify what is required.\r\n22.\tThe Panel therefore agrees with the Respondent that the burden of proof was on the Applicant to demonstrate that it is the holder or the licensee of a Prior Right, and that the Documentary Evidence provided the Respondent did not demonstrate in accordance with the Regulation or the Sunrise Rules that the Applicant was the holder of the Prior Rights in respect of any of the Domain Names.   \r\n23.\tThe Panel further agrees with the Respondent’s contention that neither it nor the Validation Agent were under any obligation to investigate into the circumstances of the applications.   The onus is upon the Applicant to submit Documentary Evidence that he or she is the holder of the Prior Right claimed.  Although there is the possibility for the Validation Agent in accordance with Section 21(3) of the Sunrise Rules to conduct its own investigations, as many previous panelists have pointed out in other ADR cases, there is no obligation upon the Validation Agent to do so.  Requiring the Validation Agent to perform such enquiries would not only have been administratively unworkable for the Validation Agent, but would be in conflict with the wording of Article 14 of the Regulation itself, which puts the burden of proof on the Applicant.  Therefore, although the Panel is conscious that in cases such as 253 SCHOELLER some other Panelists have held that the Validation Agent should in some circumstances have conducted further enquiries, the Panel is firmly of the view that the approach taken by what appears to be the majority of panelists in cases such as 2150 DUTCHORIGINALS (and which are reviewed by the Panel in that decision), namely to hold that there is no obligation upon the Respondent to conduct such further enquiries, is the correct one.\r\n24.\tAs already indicated, the company names in question in this case are noticeably different from each other.  Under the circumstances, the Panel concludes that the Respondent was under no obligation to investigate the reasons for that disparity.\r\n25.\tThe Panel also agrees with the Respondent that, for the reasons previously rehearsed in many other ADR proceedings, documents submitted for the first time during the present ADR proceedings may not be taken into consideration in deciding this Complaint.  This is particularly so given the wording of Article 14 of the Regulation itself which provides that the Respondent 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.\r\n26.\tTherefore, although the Complainant in this case has (as in many other previously decided cases) now produced evidence which if it had been produced at the time of its applications would have demonstrated its entitlement to the Prior Rights claimed, it should not be taken into account for the purposes of assessing whether the Respondent’s decisions to reject the applications was in accordance with the Regulation.  Although the Complainant refers to the supposed purpose of the applicable Rules being “to grant priority and favour of registration\/obtention of domain names by the legitimate owner of the relevant trademarks”, there are potentially many relevant interests involved. Whilst the Complainant may not feel that it is “fair” to it to have been denied its applications on the basis of what the Complainant describes as “strictly formal reasons”, the Panel does not see how the Respondent could have been expected to perform its task of validating the very many applications received during the Phased Registration Period, without establishing proper ground rules which, in this case, the Complainant has failed to follow.\r\n27.\tIn the circumstances, the Panel concludes that the difference between the Complainant’s name itself, and that shown on the trademarks provided in support of the applications, was such that the Respondent was legitimately entitled to reject the Complainant’s applications, and the Complaint should therefore be denied.\r\n28.\tThere is one other point raised in the Complaint, which requires to be dealt with.  This is the apparent inconsistency between the Respondent’s approach in respect of the domain name debby.eu, and the Domain Names at issue in this Complaint.  Essentially the same evidence was supplied in support of each of the four applications: one succeeded and three failed.   The Respondent does not address this in its Response, and the Complainant does not elaborate on what consequences are said to follow from that apparent inconsistency of approach.  It seems to the Panel that, if it had been asserted, an argument along the lines of failure of legitimate expectations would not have succeeded – all four applications were submitted at the same time, and there was no prior suggestion to the Complainant that evidence showing that a registration in the name of Deborah Cosmetics B.V. would have been acceptable for the purposes of an application by Deborah Group B.V. (indeed, the Sunrise Rules suggest the contrary)  Although it is clearly unfortunate that the Validation Agent has reached apparently different conclusions in respect of what are apparently identical factual circumstances, it does not seem to the Panel that this is in any way a ground for disputing the correctness of the decisions in respect of the Domain Names, in accordance with the Regulation, which is the question before the Panel in this case.",
    "decision": "For all the foregoing reasons, in accordance with Paragraph B12 (b) of the ADR Rules, the Panel orders that the Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-10-18 00:00:00",
    "informal_english_translation": "The Complainant challenged EURid's decisions to refuse to register the disputed domain names deborah.eu, bio-etyc.eu and rougebaiser.eu.  EURid refused to register the disputed domain names, on the basis that the evidence received by EURid was insufficient to demonstrate the existence of longstanding rights, and in particular that the evidence submitted showed registered trade marks in the name of Deborah Cosmetics B.V., rather than the Complainant’s name Deborah Group B.V.   Although the Complainant provided evidence in support of its Complaint to show, firstly, that it and Deborah Cosmetics B.V. were one and the same (following a name change in October 2002), and secondly, that there were trademark registrations which could have been provided in support of the applications which were in its own name, the Panel concluded:-\r\n\r\na)\tthe onus was on the Complainant, as Applicant, to demonstrate that it was the holder or the licensee of the Prior Rights;\r\n\r\nb)\tthe documentary evidence provided with the applications did not demonstrate it was the holder of such Prior Rights (because of the difference in the company names);\r\n\r\nc)\tneither the Respondent nor the Validation Agent was under any obligation to investigate into the difference between the names provided;\r\n\r\nd)\tdocuments and evidence submitted for the first time during the ADR proceedings may not be taken into consideration in determining the correctness of EURid’s decisions to refuse the applications.\r\n\r\nTherefore, EURid was correct in its decision to refuse registration in each of the cases in question, and the Complaint was denied",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}