{
    "case_number": "CAC-ADREU-002119",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Phoenix X-Ray Systems & Services GmbH asks for the abolition of the refusal and allocation of the domain name www.phoenix-x-ray.eu. EURid responds that the complaint should be rejected on the main basis that the Complainant did not demonstrate that it was the holder or the licensee of a prior right on the name PHOENIX-X-RAY; that it was on it (on the complainant) the burden of proof to substantiate that it is the holder of a prior right; and that the documentary evidence did not indicate who is the holder of the prior right. Also the Respondent points out that there has been some more documentary evidence that was submitted in the context of the present ADR proceeding.",
    "other_legal_proceedings": "nihil",
    "discussion_and_findings": "1. REGARDING THE RESPONDENT’S REJECTION OF THE APPLICATION BY PHOENIX X-RAY SYSTEMS & SERVICES GMBH FOR THE DOMAIN NAME PHOENIX-X-RAY\r\n\r\n“Only holders of prior rights which are recognised or established by national 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”. This is what Article 10 (1) of Commision Regulation (EC) No 874\/2004 of 28 April 2004 (hereinafter, “the Regulation”) states regarding the subjects who can apply to register domain names for the relevant period. \r\n\r\nLikewise we must take art. 14 of the Regulation into account. It states that “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.(…) 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\nRegarding the acceptable documentary evidence for registered trademarks one must refer to Section 13.2 of the Sunrise Rules: “Unless otherwise provided for in Annex 1 hereto, 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 (certificate of registration, renewal certificate, official extract from the register, declaration by the trade mark office, publication of the fact of registration in an official journal, etc.); or (ii) an extract from an official (on-line) database operated and\/or managed by the relevant national trade mark office, the Benelux Trade Marks Office, the OHIM or the WIPO. Extracts from commercial databases are not acceptable even if they reproduce exactly the same information as the official extracts. In the foregoing cases, the Documentary Evidence must clearly evidence that the Applicant is the reported owner of the registered trade mark. 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\nThe application for the domain name “PHOENIX-X-RAY” was made by Phoenix X-Ray Systems & Services GmbH (hereinafter, “the Complainant”) on December 8, 2005. The validation agent received the documentary evidence on January 16, 2006, which was before the 17 January 2006 deadline.\r\n\r\nThe documentary evidence submitted by the Complainant consisted of two certificates of registration stating that the figurative trademarks “phoenix x-ray” and “phoen ix x-ray” are registered as community trademarks. \r\n\r\nNonetheless, the name of the holder of those trademarks is not mentioned in those documents, and that is a very relevant point with a view to the acceptance of the application by the Validation Agent.\r\n\r\nIn fact, after analysing all the documentary evidence, the Validation Agent found that the Complainant did not demonstrate that it was the holder of the prior right on the name PHOENIX-X-RAY, and that is why EURid (hereinafter, “the Respondent”) rejected the Complainant’s application. \r\n\r\nIn this Panel’s opinion, the Respondent’s was not a mistaken decision. This Panel wants to remark the importance of providing all the relevant documentary evidence. It is only on it that the Validation Agent and the Registry will base their decision whether to accept or reject the application.  Therefore, it is essential to submit all the documentary evidence needed in order to prove it. To this regard, cases nº 294 (COLT), nº 1071 (ESSENCE), nº 1232 (MCE), etc., reaffirm how important it is to meet this provision. \r\n\r\nThe validation agent and the Registry cannot presuppose anything when documentary lapses exist. Also, it is important to observe that the same solidity in the application of the relevant rules must be applied in every case without any distinctions. \r\n\r\n\r\n2. REGARDING THE COMPLAINANT’S CONTENTIONS AND THE RESPONDENT’S RESPONSE\r\n\r\n2.1. THE BURDEN OF PROOF\r\n\r\nThe Sunrise Rules leave it clear that the applicant must submit all the documents that are needed for the Validation Agent so as to assess whether the applicant is the holder of the prior right corresponding to the domain name. We therefore must  refer to Art. 10 (1) and Art. 14 (4) of the Regulation.  \r\n\r\nIt would be unfair to argue that the Validation Agent could “suppose”, “presuppose”, etc., that the Applicant was indeed the holder of a prior right corresponding to the domain name. As stated in similar cases, that would establish a non-desirable precedent both for the applicants as for the Registration bodies. In fact, regulation does not provide any case where an exception can be made in the egalitarian application of the relevant provisions. \r\n\r\nIt was the Complainant that was ought to demonstrate that it was the holder of a prior right by means of the documentary evidence. It is true that during the Sunrise Rules, the first applicant in the line does not have an unconditional right to the domain name, but only has an opportunity to submit documentary evidence within 40 days to try to clearly demonstrate that it is the holder of a prior right. \r\n\r\nIn the case herein, there is no doubt that the Complainant failed to do so.\r\n\r\nAnd in this Panel’s opinion, that is reason enough so as to reject the application: that the Complainant failed to meet its burden of proof. \r\n\r\n\r\n2.2. REGARDING THE ALLEGED OBLIGATION OF THE RESPONDENT AND THE VALIDATION AGENT TO INVESTIGATE INTO THE CIRCUMSTANCES OF THE APPLICATION\r\n\r\nLet us refresh the content of Section 21.2 of the Sunrise Rules: it 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\nLikewise Section 21.3 of the Sunrise Rules states 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\".\r\n\r\nOne can easily understand at this rate that it does not deal with the imposition of an obligation for the Validation Agent to conduct its own investigation: it deals with a possibility that the Respondent can use “in its sole discretion”. \r\n\r\nTherefore Art. 21.3 cannot be constructed as an obligation. Nonetheless, that does not mean either that the Validation Agent should not be involved in the applications. But it is important to emphasize that he is not obliged but rather he has possibility of conducting its own investigations.\r\n\r\nOne must not forget what is mentioned above regarding the burden of proof. In the case herein it is the Complainant who clearly failed to prove the ownership rights. \r\n\r\nDue to the above, this Panel does not find the contested decision to reject the application of the Complainant made by the Respondent in conflict with any of the Regulations.  \r\n\r\n\r\n2.3 REGARDING THE INFORMATION SUBMITTED DURING THE PRESENT ADR\r\n\r\nArt. 14 of the Regulation clearly states the following: “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 documentary evidence shall be submitted to a validation agent indicated by the Registry. 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. IF THE DOCUMENTARY EVIDENCE HAS NOT BEEN RECEIVED BY THIS DEADLINE, THE APPLICATION FOR THE DOMAIN NAME SHALL BE REJECTED”. \r\n\r\nIn the case herein there is no doubt that the deadline for submitting the documentary evidence, the documents, was January 17, 2006. \r\n\r\nIt was on June 29, 2006 that the Complainant filed its Complaint and submitted new documents attached to this complaint. But if one adheres to the relevant rules one can easily understand that those documents may not serve as a basis to assess whether the Complainant is the holder of a prior right, since they were submitted more than five months after the end of forty days period set forth by the Regulation. \r\n\r\nMoreover, Art. 22 (1) b of the Regulation states that a decision taken by the Respondent may only be annulled when it conflicts with the Regulation. Only the documentary evidence which the Respondent was able to examine at the time of the validation of the application should be considered by the Panel to assess the validity of the Respondent’s decision. According to this, the new documents attached to the present complaint cannot be taken into consideration. \r\n\r\nThis Panel considers that the Respondent has worked in every moment according to the relevant rules, and therefore its decision does not conflict with the Regulation. The Panel finds no reason so as to affirm that the Respondent or the Validation Agent have acted in breach of the Regulation and the Sunrise Rules.",
    "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": "2006-10-18 00:00:00",
    "informal_english_translation": "1. REGARDING THE RESPONDENT’S REJECTION OF THE APPLICATION BY PHOENIX X-RAY SYSTEMS & SERVICES GMBH FOR THE DOMAIN NAME PHOENIX-X-RAY\r\n\r\nThe Panel takes Arts. 10 (1) and 14 of the Commision Regulation (EC) No 874\/2004 of 28 April 2004 into account, and also Section 13.2 of the Sunrise Rules. It affirms that the documentary evidence submitted by the Complainant consisted of two certificates of registration stating that the figurative trademarks “phoenix x-ray” and “phoen ix x-ray” are registered as community trademarks. The name of the holder of those trademarks is not mentioned in those documents, and therefore cannot presuppose anything given that documentary lapses exist. \r\n\r\n\r\n2. REGARDING THE COMPLAINANT’S CONTENTIONS AND THE RESPONDENT’S RESPONSE\r\n\r\n2.1. THE BURDEN OF PROOF\r\n\r\nThe Panel mentions Art. 10 (1) and Art. 14 (4) of the Regulation and states that it was the Complainant that was ought to demonstrate that it was the holder of a prior right by means of the documentary evidence. In the case herein, there is no doubt that the Complainant failed to do so. In the Panel’s opinion, that is reason enough so as to reject the application: that the Complainant failed to meet its burden of proof. \r\n\r\n2.2. REGARDING THE ALLEGED OBLIGATION OF THE RESPONDENT AND THE VALIDATION AGENT TO INVESTIGATE INTO THE CIRCUMSTANCES OF THE APPLICATION\r\n\r\nOn the basis of Section 21.2 and 21.3 one can easily understand that it does not deal with the imposition of an obligation for the Validation Agent to conduct its own investigation, but with a possibility that the Respondent can use “in its sole discretion”. Due to the above, this Panel does not find the contested decision to reject the application of the Complainant made by the Respondent in conflict with any of the Regulations.  \r\n\r\n\r\n2.3 REGARDING THE INFORMATION SUBMITTED DURING THE PRESENT ADR\r\n\r\nArt. 14 of the Regulation clearly states the following: “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 documentary evidence shall be submitted to a validation agent indicated by the Registry. 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. IF THE DOCUMENTARY EVIDENCE HAS NOT BEEN RECEIVED BY THIS DEADLINE, THE APPLICATION FOR THE DOMAIN NAME SHALL BE REJECTED”. \r\n\r\nIn the case herein there is no doubt that the deadline for submitting the documentary evidence, the documents, was January 17, 2006. \r\n\r\nIt was on June 29, 2006 that the Complainant filed its Complaint and submitted new documents attached to this complaint. But if one adheres to the relevant rules one can easily understand that those documents may not serve as a basis to assess whether the Complainant is the holder of a prior right, since they were submitted more than five months after the end of forty days period set forth by the Regulation. \r\n\r\nThe Panel considers that the Respondent has worked in every moment according to the relevant rules, and therefore its decision does not conflict with the Regulation. The Panel finds no reason so as to affirm that the Respondent or the Validation Agent have acted in breach of the Regulation and the Sunrise Rules. \r\n\r\nAnd therefore, the Pnel order that the Complaint is Denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}