{
    "case_number": "CAC-ADREU-002257",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "Complainant is the holder of a trademark (LI&VE). Based on this trademark, it applied during the Sunrise 1 period for the following domain name: live.eu. This application was the first in line and the Complainant was granted the domain name.\r\n\r\nAnother company (Microsoft) applied for the same domain name and was ranked # 2.\r\n\r\nMicrosoft launched an ADR against Eurid’s decision to grant the domain name to the Complainant. This ADR raised the issue of the transliteration of the Complainant’s trademark into a domain name under article 11 of EC Regulation 874\/2004, and it ended against the Complainant. The decision of Eurid to grant the domain name to the actual Complainant was annulled.\r\n\r\nThe Panel in this first ADR didn’t provide for any measure concerning the domain name; it only annulled Eurid’s decision.\r\n\r\nThe next step is unclear. \r\n\r\nBased on Complainant’s assertion, Eurid first refused to register the domain name in the name of Microsoft, and changed its mind later on (i.e., after the Complainant launched the actual ADR).\r\n\r\nRespondent answers that “contrary to the Complainant's assertion, the application by \"Microsoft B.V.\" is not rejected, but accepted. This is clearly established by the WHOIS database”. \r\n\r\nIt is unclear whether or not Eurid first refused and then accepted Microsoft’s application, but as a matter of fact, the Whois? Database clearly indicates today that the domain name is registered in the name of Microsoft.",
    "other_legal_proceedings": "ADR case 265 (decided).\r\n\r\nADR case 02990 (not yet decided when this decision was taken).\r\n\r\nComplainant writes that it recently launched another ADR against the decision of EURid to accept Microsoft application. (see non standard comm., dated 2006-07-11). \n",
    "discussion_and_findings": "Pursuant to article 22 of EC Regulation, an ADR may be initiated “by any party where: (a) … (b) a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733\/2002”.\r\n\r\nThere are thus three conditions for a successful ADR under article 22 (b):\r\n\r\n1.\tA decision.\r\n\r\n2.\tThe decision must be taken by the Registry.\r\n\r\n3.\tSaid decision must conflicts with Regulation.\r\n\r\nThe question is whether or not the implementation of the Panel decision in the Live case (ADR 265) is, or not, a decision taken by the Registry?\r\n\r\n\r\noOo\r\n\r\n\r\nBefore assessing the case, it is worth recalling that an ADR decision in a procedure against the Registry is divided into two separate parts. This division derives from article 22, 10, of EC Regulation 874\/2004:\r\n\r\n(begin of quote)\r\n\r\nIn the case of a procedure against the Registry, the ADR panel shall decide whether a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733\/2002. \r\n\r\nThe ADR panel shall decide that the decision shall be annulled and may decide in appropriate cases that the domain name in question shall be transferred, revoked or attributed, provided that, where necessary, the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733\/2002 are fulfilled.\r\n\r\n(end of quote)\r\n\r\n\r\n-  Part 1 of the decision: is Eurid’s decision annulled? \r\n\r\nThis first part concerns the merits of the initial application: did Eurid correctly apply the Regulation when it took its decision concerning the initial application? Pursuant to article 22, 10, part 1 is compulsory: the Panel SHALL DECIDE [we emphasize] …”.\r\n\r\n-  Part 2: if the decision is annulled, who gets the domain name? \r\n\r\nDepending on the facts of the case, the Panel may also order measures related to the “ownership” of the domain name. Pursuant to article 22, 10, part 2 is optional: “the Panel … MAY DECIDE [we emphasize] in appropriate cases that the domain name in question shall be …”.\r\n\r\n\r\noOo\r\n\r\n\r\nIn the Panel view, it is unreasonable to pretend that the implementation of the first part of a Panel decision is a “decision taken by the Registry”, or that “this decision conflicts with the Regulation”.\r\n\r\nLet’s take things the other way: if one considers the annulment of the Registry’s decision by the Panel, as a decision taken by the Registry itself that any party could challenge in another ADR, the second ADR would be an appeal against the first ADR Panel decision and this in not acceptable under applicable Regulations. \r\n \r\nIt would also create an endless circle: the second ADR would then be a new decision taken by the Registry; any party could challenge it, and so on ….\r\n\r\n\r\n\r\nThe question is slightly different as far as the second part of the Panel decision is concerned.\r\n\r\nWhen the Panel decides measures in respect of article 20, 10, of Regulation (transfer, revocation or attribution of the domain name – see here above), the situation is the same as for the first part of the decision. The implementation of the measures is not a decision taken by the Registry.\r\n\r\nWhen the Panel is silent (part 2 is indeed optional – see here above), then there can be a decision taken by the Registry. \r\n\r\nDepending on the situation (Sunrise or Land Rush, one or many applicant for the domain name, etc.), the Registry must apply the Regulation and if it doesn’t, any party may launch an ADR. \r\n\r\n\r\noOo\r\n\r\n\r\nIn the present case, the purpose of the complaint is to challenge the first part of the Panel decision in the Live case (ADR 265). \r\n\r\nFirst evidence of this, is that based on a comprehensive analysis of the Regulation, the Complainant tries to demonstrate that the Panel in case 265 interpreted badly article 11 of the Regulation. \r\n\r\nAnother evidence of this, is that even if the Complainant formally challenges the decision of Eurid to accept\/reject Microsoft’s application, it does it only as a consequence of the fact that the first Panel took, in the Complainant’s view, a bad decision (quote: “EURid’s decision to reject the application of Microsoft B.V. conflicts with Regulation 784\/2004 as well. The Domain Name should have been awarded to Complainant. EURid, therefore, was not entitled to take a decision with respect to the question whether or not the Domain Name should be registered in the name of the applicant second in line, Microsoft B.V.”).\r\n\r\nFor the reasons set up here above, the Panel may not accept to reopen the Live case.\r\n\r\nThis conclusion is not an approval or a rejection by the actual Panel of the solution provided for in the Live case; it is the inevitable consequence of the fact that a previous Panel annulled Eurid’s decision, and that the actual Panel may not, and shall not, reopen the debate on the merits of the Complainant initial application. As far as ADR is concerned, this debate has been closed by the annulment of Eurid’s decision.",
    "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": "2006-10-31 00:00:00",
    "informal_english_translation": "The question is whether or not the implementation of a Panel decision taken previously in a procedure against the Registry is, or not, a decision taken by the Registry that any party may challenge under article 22,10 of EC Regulation 874\/2004?\r\n\r\nIn an ADR decision in a procedure against the Registry is divided into two separate parts. This division derives from article 22, 10, of EC Regulation 874\/2004:\r\n\r\n-  Part 1 of the decision: is Eurid’s decision annulled? \r\n\r\nThis first part concerns the merits of the initial application: did Eurid correctly apply the Regulation when it took its decision concerning the initial application? Pursuant to article 22, 10, part 1 is compulsory: the Panel SHALL DECIDE [we emphasize] …”.\r\n\r\n-  Part 2: if the decision is annulled, who gets the domain name? \r\n\r\nDepending on the facts of the case, the Panel may also order measures related to the “ownership” of the domain name. Pursuant to article 22, 10, part 2 is optional: “the Panel … MAY DECIDE [we emphasize] in appropriate cases that the domain name in question shall be …”.\r\n\r\nAfter a careful analysis of the Complainant, the Panel reached the conclusion that this complaint is directed against the first part of the Panel decision in case ADR 265 (LIVE).\r\n\r\nIn the Panel view, it is unreasonable to pretend that the implementation of the first part of a Panel decision is a “decision taken by the Registry”, or that “this decision conflicts with the Regulation”.\r\n\r\nLet’s take things the other way: if one considers the annulment of the Registry’s decision by the Panel, as a decision taken by the Registry itself that any party could challenge in another ADR, the second ADR would be an appeal against the first ADR Panel decision and this in not acceptable under applicable Regulations. \r\n \r\nIt would also create an endless circle: the second ADR would then be a new decision taken by the Registry; any party could challenge it, and so on ….",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}