{
    "case_number": "CAC-ADREU-002298",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant, owner of the famous mark LEVI’S, was the first to submit an application for the domain name LEVIS.  However, its application contained a minor error with respect to the name of the company that formally owned the mark.\r\n\r\nBecause of that error, and the resulting discrepancy between the name of the applicant and the name of the owner of the mark, the Registry refused the Complainant’s application and assigned the contested domain name to the second applicant in the queue.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "Procedural Points \r\n\r\nPursuant to 26.1 of the Sunrise Rules, an ADR proceeding against the Registry may be initiated within 40 days of a decision by the Registry.  In the present case the contested decision was made on 1 June 2006 and the Complaint was submitted on 7 July 2006. The Complaint was therefore submitted within the deadline and is admissible.\r\n\r\nSubstantive Issues \r\n\r\n1. Error in the “Prior right on” field.\r\n\r\nIt is not contested that that the field \"Prior right on” in the cover letter was wrongly completed with the name of the Applicant, \"Levi Strauss Europe S.A.” as opposed to containing the mark LEVI’S. \r\n\r\nHowever, EURid did not refuse the domain name application for this reason, so it did not answer the Complainant's arguments in this respect.\r\n\r\nIn order to avoid any possible doubts regarding the Complainant’s right to register the contested mark, the majority of the Panel will nevertheless analyze this issue.\r\n\r\nAs the Complainant correctly points out, an Annex attached to the cover letter rectifies the error in the “Prior right on” field.  Thus, the validation agent had the correct information, albeit not quite in the correct place.  There is no reason to believe that the validation agent would not have used the correct information that was available. \r\n\r\nTherefore, the majority of the Panel concludes that EURid cannot deny the Complainant’s application on the grounds that the “Prior right on” field was incorrect.\r\n\r\n2. Error regarding the company name\r\n\r\nIt is not disputed that the Complainant made a mistake in its application, by not providing the correct company name for the owner of the mark LEVI’S.\r\n\r\nThis Panel agrees with the reasoning of the panel in case ADR 1886: \r\n\r\n\"According to the Procedure laid out in the Regulation the relevant question is thus not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right. If an applicant fails to submit all documents which show that it is the owner of a prior right the application must be rejected\".\r\n\r\nThus, the question before this Panel is whether or not the Complainant provided sufficient evidence to the validation agent that it is the holder of a prior right.\r\n\r\nThe majority of the Panel notes that the address on the application is the same as the address in the Documentary Evidence supplied with the application.\r\n\r\nThe majority also notes that both the brand LEVI’S and the Levi Strauss group of companies are very well known.  Indeed, the brand LEVI’S is one of the world’s oldest famous brands.\r\n\r\nGiven that Levi Strauss and its brand LEVI’S are so well known, and that the addresses supplied on the application and the Documentary Evidence were identical, the majority of the Panel finds that the error concerning the company name was non material.  \r\n\r\nThe Respondent states, in light of the errors made by the Applicant, that it had no right (and a fortiori no obligation) to speculate on the relationship between the Applicant and the owner\/licensee of the trademark, and therefore correctly rejected the Applicant's application.\r\n\r\nFurther, the Respondent notes that the applicant must comply with the strict procedure laid out by the Regulation for dealing with the thousands of applications received during the phased registration and making sure that these applications are substantiated, which was not the case here. \r\n\r\nThe Panel agrees that the validation agent cannot be expected, given the large number of applications that have to be processed, to take initiatives to conduct additional investigations for each and every application. \r\n\r\nHowever, a majority of the Panel holds that, in this particular case, the validation agent should either have accepted the application, or taken additional steps to investigate the discrepancies: each application has a cost attached to it and the administrative costs of examining each application properly were or should have been built into the application fee.  All it would have taken is a short e-mail from the validation agent querying the apparent discrepancies in the documentation submitted and the presumed response would have ensured that the full supporting documentation would have been received within the 40-day period.  Such a small action by the validation agent would have put the Respondent into a position where it would have seen that all documentary evidence had been satisfactorily submitted and then upheld the spirit and intention of the “prior right” rule by awarding the Domain Name LEVIS to the Complainant in the first place.  \r\n\r\nA majority of the Panel holds that the Respondent, given the facts presented to it, had no choice but to refuse the incorrect application.\r\n\r\nA minority of the Panel holds that the Respondent appears to have overly relied on the diligence of a validation agent who had all the discretion granted to investigate any application but did not choose to exercise it.  This cannot be held to be good practice and nowhere is the Respondent absolved of its responsibilities in ensuring that justice is done and the spirit of the regulations respected as much as the letter.  Nor should it overly rely on ADR mechanisms to resolve problems caused at validation stage. \r\n\r\nHowever the ADR proceeding do provide a mechanisms to rectify situations where, for whatever reason, a decision was made that appears to be inconsistent with the basic purposes of the Regulation and the Sunrise Rules (whose purpose is to implement the Regulation).\r\n\r\nAs the Respondent correctly points out, the Regulation and the Sunrise Rules give the holders of prior rights the opportunity to demonstrate their prior rights during the phased registration.  And the dispute resolution process is an integral part of the Regulation and of the Sunrise Rules.\r\n\r\nThe majority of the Panel holds that, to deny the Complainant’s application at this stage, in light of all the arguments presented by the Complainant, would be to admit that the initial non-material error cannot be rectified.  The majority of the Panel believes that this approach would be excessively formalistic and would frustrate the fundamental purpose of the Sunrise Rules and the purpose of Article 14 of the Regulations.\r\n\r\nThe Respondent cites case no. 1627.  But the facts in that case are very different from the facts in the present case.  In case no. 1627, the Complainant had failed to submit a trademark renewal application, and submitted evidence with respect to its trademark only during the dispute resolution proceedings.  As the panel correctly noted, “documents which did not form part of the first set of documents submitted to the validation agent should be disregarded when assessing the validity of a decision of the Respondent [EURid]”.\r\n\r\nBut such is not the case here: the documents submitted by the Complainant in its original application suffice to establish that it does have rights to the contested domain name.  Similar reasoning also distinguishes case no. 219 (cited by the Respondent) from the present case.\r\n\r\nIn accordance with 26.2 of the Sunrise Rules, the sole object and purpose of an ADR Proceeding against the Registry is to verify whether the relevant decision by the Registry conflicts with the Regulations.\r\n\r\nIn accordance with 10.2 of the Sunrise Rules, the validation agent validates whether the Documentary Evidence substantiates the Prior Right claimed by the Applicant in the Application.\r\n\r\nIn accordance with Article 14 of the Regulations, if the validation agent finds that prior rights exist regarding the application for a particular domain name that is first in line, he shall notify the Registry accordingly.\r\n\r\nThe majority of the Panel holds that, in the present case, the validation agent erred in not validating the Complainant’s prior right on the basis of the documents submitted by the Complainant in its application.  Therefore the majority of the Panel holds that the Registry’s decision conflicts with the Regulations.\r\n\r\nThe minority of the Panel holds that the validation agent strictly acted according to the relevant rules and consequently correctly rejected the application in question.  Indeed, the Complainant has not itemized any violation of section 21(3) of the Sunrise Rules by the validation agent, and according to section 22 the Respondent’s decision to reject the application was made because the applicant did not really demonstrate that it has a prior right pursuant to the Regulation and the Sunrise Rules.  And this because the complete documentary evidence was not provided in time.\r\n\r\nIn accordance with 27.1 of the Sunrise Rules, if the ADR Proceeding concerns a decision by the Registry not to register a Domain Name and the Panel concludes that that decision conflicts with the Regulations, then, upon communication of the decision by the Provider, the Registry will register the Domain Name in the name of the Applicant and will immediately activate the Domain Name.\r\n\r\nSuch is the case here: the Panel orders (by a majority) the Registry to register the name LEVIS in the name of the Complainant and to activate it immediately.",
    "decision": "For the reasons set forth above, in accordance with 27.1 of the Sunrise Rules and B.11.c of the ADR Rules, the Panel (by a majority) annuls EURid’s decision to accept Akzo Nobel Coatings International B.V.’s application for the domain name LEVIS and it orders EURid to cancel the present registration.  Further, it orders EURid to register the name LEVIS in the name of the Complainant and to activate it immediately.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-09-28 00:00:00",
    "informal_english_translation": "Complainant challenges the registration of the domain name LEVIS on the ground that the Registry incorrectly refused its prior application for that domain name.\r\n\r\nThe Registry had refused the Complainant’s application because it contained a minor error concerning the name of the legal entity that owns the mark LEVIS. \r\n\r\nBy a majority, the Panel finds that the Registry acted appropriately in light of the information that it had, but that the validation agent erred in not finding that the Complainant had indeed provided sufficient evidence to substantiate its rights in the domain name LEVIS.\r\n \r\nTherefore the Panel (by a majority) annuls EURid’s decision to grant the domain name LEVIS to the second applicant in the queue and it orders EURid to register the name LEVIS in the name of the Complainant and to activate it immediately.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}