{
    "case_number": "CAC-ADREU-002335",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "This Complaint arises out of the interpretation and application of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“Regulation”) and the .eu Registration Policy and Terms and Conditions for Domain Name Applications made during the phased registration period (“the Sunrise Rules”). \r\n\r\nThe Complaint is made by Fela Elektronik GmbH (“the Complainant”), against the decision of the EURid (“the Respondent”) which rejected the application of the Complainant for the domain name «fela.eu»",
    "other_legal_proceedings": "",
    "discussion_and_findings": "1.\tThe Regulation and further the Sunrise Rules govern all .eu domain name applications made during the phased registration period. The principal obligations of the Registry regarding its decision to register .eu domain names during the phased registration are set out in Article 14 of the Regulation, and in particular, the final paragraph of that Article 14 obliges the Registry to register .eu domain names on a the first come first served basis, PROVIDED THAT it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in that Article. Thus, the Panel must establish whether the Complainant demonstrated such a prior right when it applied for the domain name «fela.eu». \r\n\r\n2.\tThe Complainant applied for the domain name «fela.eu» on 7 December 2005. The documentary evidence was received in time on 12 January 2006. This documentary evidence consisted of a certificate of international registration stating that the trade mark «FELA» was registered in the name of «Ernst Uhlmann». In contrast, the Complainant, that is Fela Elektronik GmbH, was the applicant for the domain name «fela.eu» and not Ernst Uhlmann, the trade mark owner.\r\n\r\n3.\tIt is not contested that the owner of the trade mark «fela.eu» is Ernst Uhlmann, is a different person, to the applicant \/ Complainant Fela Elektronik GmbH. During the course of this Complaint, it has become clear that the trade mark owner, Ernst Uhlmann, is the CEO of the Complainant and therefore there is a link between the two, though this does not overcome the issue that the two are separate and distinct persons.\r\n\r\n4.\tThe Complainant contends that it did not have to submit evidence to demonstrate that it was duly licensed by the owner of the trade mark «FELA» since this could be derived from the circumstances of the case. Further, the Complainant suggests that as in the covering letter, the Complainant declares that it is the owner, right holder or licensee of the claimed prior right and as it was signed by the owner of the trade mark, the Complainant suggests that this is sufficient evidence that it has demonstrated that it was the licensee.\r\n\r\n5.\tThe Panel refers to Section 20.1. of the Sunrise Rules, which provides, \r\n\r\n\"If an Applicant has obtained a licence for a registered trade mark referred to in Section 13(1)(i) above in respect of which it claims a Prior Right, it must enclose with the Documentary Evidence an acknowledgement and declaration form, a template of which is contained in Annex 2 hereto, duly completed and signed by both the licensor of the relevant registered trade mark and the Applicant (as licensee)\". \r\n\r\nBearing in mind that the Complainant and the trade mark owner are two separate and distinct entities, the Complainant, in accordance with Section 20.1 of the Sunrise Rules was under a clear obligation to provide documentary evidence, such as a licence AND in the form set out in Annex 2 of the Sunrise Rules, to support its application. The Complainant did not and therefore it failed to discharge its burden of proof. As the Respondent correctly asserts, there have been numerous decisions which support this approach, and this Panel concurs with that approach.\r\n\r\n\r\n6.\tIt has been suggested that the validation agent should have investigated further on the basis of Sections 21.2 and 21.3 of the Sunrise Rules, which provide, \r\n\r\n\"21.2  [t]he 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\n\"21.3  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\n7.\tSection 21.3 of the Sunrise Rules clearly does not impose an obligation on the validation agent to conduct its own investigation: it is a mere right that it may investigate if it wishes and \"in its sole discretion\". The vast majority of Panel decisions supports this.  ADR 127 (BPW), it was held, “it cannot be deemed as the breach of the Section 21.3 of .eu Sunrise Rules if he decided not to conduct any investigation.\". In ADR 501 (LODE, PROCARE), \"The Panel accepts that the applicant should not expect the Registry or the Validation Agent to engage in its own investigations to establish the exact relationship between the registered holder of the trade mark and the applicant\". In ADR 1695 (VANDIJK), the Panel held “If the validation agent would have been obliged (and not merely entitled) to investigate further in cases like the present one, this would have increased the already substantial verification costs (both in time and in money) for the phased registration period, which would have benefited a few (like the Complainant) to the disadvantage of most other applicants who have submitted their applications and documentary evidence in full compliance with the Sunrise Rules\". \r\n\r\n8.\tWhile the Complainant makes reference to ADR SCHOELLER, as noted in ADR 1695 (VANDIJK) where the Panel stated that: \"Unlike in the SCHOELLER case cited above and the similar Case No. 181 (OSCAR), the present case is not based on a mere technical flaw of the concerned registrar’s IT system, but was apparently rather caused by human error. Also unlike the SCHOELLER and OSCAR case, the applicant’s company name in this case was not merely longer or shorter than the name of the trade mark owner specified in the documentary evidence\". \r\n\r\n9.\tWhile it appears to have been an unfortunate oversight in the present case on the part of the Complainant, it nevertheless remains that the rules are clear on how the Complainant can establish its prior right. Where there is scope for interpretation, the Panel will interpret, however this Panel considers that the rules as to how one can establish a prior right when submitting an application during the phased period are clear and therefore it has no option but to conclude that as the Complainant did not submit the correct documentary evidence to support its claim of prior rights, and therefore the verification agent’s decision was correct. As discussed in ADR 1886 (GBG), \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 \r\nthe owner of a prior right the application must be rejected\". \r\n\r\nCONCLUSION\r\n\r\n7.\tThe Panel has carefully considered all facts of this case and, while sympathetic to the Complainant’s position, the Panel does not find any breach of the Regulations or Sunrise Rules by the Respondent.  The Panel therefore must dismiss the Complaint. While the Panel cannot overly speculate, had the Complainant submitted the correct documentation, demonstrating and substantiating its prior rights in accordance with the Sunrise Rules, then there would probably have been a different outcome.",
    "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 Complainant contested the Respondent’s (EURid) rejection of the Complainant’s application for the domain name «fela.eu» during the phased sunrise period.\r\n\r\nThe Respondent rejected the application on the basis that the Complainant was not the named owner on the trade mark certificate and no documentary evidence, such as a licence and declaration in accordance with Section 20 of the Sunrise Rules, was submitted. The Complainant explained that the trade mark owner was its CEO and therefore by implication of signing the covering letter, it was clear that it had a licence to use the trade mark and consequently a prior right.\r\n\r\nWhile sympathetic, on the basis that it appears to have been an unfortunate oversight, the Panel concluded that the rules on demonstrating a prior right were clear and given that no documentary evidence proving such prior right in accordance with the Sunrise Rules was submitted in due time, the Respondent was right to deny the Complainant’s application as the burden of proof remains plainly with the Complainant to submit the correct documentation.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}