{
    "case_number": "CAC-ADREU-002268",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant, ebsoft GmbH applied for the registration of the domain name “ebsoft” via Registrar Schlund Technologies on 9\/12 2005. A certificate of German trade mark ebsoft No. 398 06 264 which showed that the trademark is registered in the name EB-Soft Gesellschaft für elektronische Beschriftungs-Software mbH of was submitted on 10\/12 2005 as the documentary evidence. Based on that, the Registrar found that the Complainant did not prove that is was the owner or licensee of prior right “ebsoft” and the Respondent with decision of 26.5.2006 rejected the application. \r\nThe Complainant filed a Complaint against EURid in accordance with the .eu Alternative Dispute Resolution Rules (the “ADR Rules”) and the formal date of the commencement of the ADR Proceeding was 08\/08 2006. The Respondent filed its Response on 29\/09 2006 and subsequently  the case was transferred to a Panel on 5.10.2006.",
    "other_legal_proceedings": "The Panel is not aware of any legal proceedings which are pending or have been decided and which relate to the disputed Domain Name.",
    "discussion_and_findings": "1. The Complainant under company name ebsoft GmbH filed application for the registration of the domain name “ebsoft” on 9.12.2005. The Complainant submitted the documentary evidence consisting of a certificate of the registration of German national trade mark “ebsoft” No. 398 06 264 in the name of EB-Soft Gesellschaft für elektronische Beschriftungs-Software mbH. Due to the fact that the Complainant did not substantiate that the holder of prior right is the same person or licensee of the Applicant (=Complainant), the Respondent rejected the application. Complainant in its Complaint argues that it is the same person with the holder of prior trademark rights and provides new documentary evidences to this respect, i.e. notarial deed of the notary public (2 UR 263\/2006 dated 19 June 2006), and certificates of the German and Communitary trade mark “ebsoft”. It is to be noted that likewise the power for representation as well as the confirmation of the notary public (when citing the companies register extract) refer to EB-soft Gesellschaft für elektronische Beschriftungs-Software mbH. \r\nThe relevant legislation is as follows: Article 10 (1) of Commission Regulation (EC) No. 874\/2004 of 28 April 2004 (hereafter “the Regulation”) regulates that only holder of prior rights which are recognized 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 (i.e. Sunrise period). \r\nIn accordance with article 14 of the Regulation “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\nIn accordance with Section 21 (2) of the Sunrise Rules ..” the validation agent will examine whether the application has a prior right to the name exclusively on the basis of prima facie review of the first set of Ducumentary Evidence  received”.\r\nIn accordance with section 20 (3) of the Sunrise Rules.. “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, 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\nThe Validation agent must therefore examine whether the applicant (= Claimant) for a registration of a domain name as filed during Sunrise period is a holder of a prior right (Art.14 of the Regulation).  \r\nThe wording of the above referenced provisions imposes the burden of proof of the ownership of the prior right clearly on the applicant. This is stated in the above referenced Article 14 of the Regulation. Such documentary evidence must be received within the 40 day period following the submission of the application. \r\nThe documentary evidence which was submitted by the applicant (=Complainant) did not prove that the Complainant is the holder of the prior right as the certificate of German trade mark No. 39806264 showed a different company name. The company name on the application for registration of a domain “ebsoft” was ebsoft GmbH, whereby on the certificate of the trademark No. 398 06 264 which should serve as a proof of a prior right was as owner the company EB-Soft Gesellschaft für elektronische Beschriftungs-Software mbH, which was a different company name.  It has to be noted that the company name both as applied for in the application for registration of a domain name “ebsoft” as well as inserted in the trade mark certificate show substantial differences consisting of a different number of words of the company as well as different type of letters ( capitals vs. small letters). \r\nFrom the above mentioned reasons, the Panel saw no reason why to investigate if the Complainant was allowed under the German law to use a shortened name as official name in the application.\r\nThe Complainant did not submit official documents proving that the applicant is the same person or the legal successor to the person indicated in the documentary evidence as being the holder of the prior right. Therefore Registrar’s obligation to examine if the applicant for the domain name is the same entity as the holder of a prior right was not verifiable by the presented documentary evidence. \r\nArt. 21 (3) of the Sunrise Rules authorizes the validation agent to correct certain immaterial and obvious errors. This was not the case as the name of the applicant and of the holder of prior trade mark rights is substantially different. Therefore validation agent was under no obligation to conduct further investigation. \r\nIt is furthermore on obvious that additional documentation (as filed within the ADR proceeding) was filed after expiration of the 40-days period for submission of the documentary evidence and as a consequence thereof cannot be accepted.\r\nBased on the above mentioned facts, the documentary evidence submitted together with the application for the domain name “ebsobt” was not sufficient to prove at that time that the applicant and the holder of the prior right is  the same person. Therefore, the Respondent proceeded correctly when it rejected the application.",
    "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": "2006-10-12 00:00:00",
    "informal_english_translation": "The Decision of the Respondent on the rejection  of the applications for the registration of a domain “ebsoft” is correct. \r\nThe Complainant, ebsoft GmbH has not submitted sufficient documentary with the application evidence to prove that the Respondent and the holder of the prior right, EB-Soft Gesellschaft für elektronische Beschriftungs-Software mbH,, is the same person at the time.\r\nThe burden of proof of the ownership of the prior right is imposed on the Complainant and such prior right must be proven from the submitted documentary evidence. In absence of such documentary evidence, the application must be rejected.\r\nSuch procedure of the Respondent is based on Art. 10 (1) and 14 of Commission Regulation (EC) No. 874\/2004, as well as Section 20 (3) and 21 (2) of the Sunrise Rules.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}