{
    "case_number": "CAC-ADREU-002350",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The application for domain name PUBLICARE was applied on December 7, 2005 at 11:12 :12.772 and arrived in first position in the queue of the applications made for this domain name. \r\n\r\nThe name of the applicant in the application letter was “PubliCare”.\r\n\r\nThe Aplicant for the domain name submitted as enclosure to the application excerpts from Germant trademark registration for trademark “publicare” and exceprt from the commercial register of commercial court Frankfurt of  Publicare Marketing Communication GmbH. \r\n\r\nOn June 18, 2006 EURid rejected the registration because according to EURid opinion the application does not constitutes statisfactory evidence of the claimed right.",
    "other_legal_proceedings": "nihil",
    "discussion_and_findings": "The Applicant, named in the application letter as PubliCare (hereafter “the Applicant”) applied for the applied for the domain name PUBLICARE on 7 December 2005. The processing agent received the documentary evidence on 13 January 2006, which was before the 16 January 2006 deadline. \r\nThe Applicant submitted documentary evidence consisting of certificate from the German Trademark Office stating that the trademark \"PUBLICARE\" is registered by \"Publicare Marketing Communication Gmbh\".\r\n\r\nArticle 10 (1) of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\") states that only holders 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. \r\n\r\nDuring 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 try to clearly demonstrate that it is the holder of a prior right. \r\n\r\nArticle 14 of the Regulation 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\nThe documentary evidence did not demonstrate, with no doubt, that the Applicant was the holder of a prior right the name of the Applicant is “PubliCare”, as stated on the application letter. The owner of the trademark is \"Publicare Marketing Communication Gmbh\".\r\n\r\nArticle 20.3. of the Sunrise Rules states that \"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 (e.g. because the Applicant has become subject to a name change, a merger, the Prior Right has become subject to a de iure transfer, etc.), 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\n\r\nThe Complainant does not dispute that the names of the Applicant in the application letter and the name of the owner of the trademark are different. The Complainant contends that the reason why the name of the Applicant (\"PubliCare\") is not the same as the name of the owner of the trademark (\"Publicare Marketing Communication Gmbh\") is simply because PubliCare is the short form of the name \"Publicare Marketing Communication Gmbh\". \r\n\r\nThe Applicant did not submit any other documentary evidence explaining the difference between the name of the Applicant and name of the trademark holder. Therefore the Respondent could have legitimate doubts if the Applicant and the trademark owner is the same company. \"PubliCare\" could indeed very well be a different company from \"Publicare Marketing Communication Gmbh\". \r\n\r\nThe Complainant contends that excerpt from the commercial registers entry of the complainant was enclosed to the filed application and that the complainants registered office address, the address on the application letter and the trade mark registration is the same and therefore the Applicant prior right was demonstrated.  \r\nIt is not breach of the Regulation if the validation agent did not conduct own investigations into circumstances of the application, the prior right and the documentary evidence, if there are different names of the Applicant and the trademark holder and it is not supported by any other documentary evidence except of the same address.\r\nSection 21 (3) of the Sunrise Rules confirms that the validation agent was no obliged but only permitted, in its sole discretion, to conduct own investigations into the circumstances of the application, the prior right and the Documentary Evidence submitted. \r\nThere was no other evidence substantiate that the Applicant (PubliCare) is the same person, legal successor or is licensed by the owner of the trademark.  \r\n\r\nBased on the documentary evidence, the validation agent found that the Applicant did not demonstrate that it was the holder or the licensee of a prior right on the name PUBLICARE. Therefore, the Respondent rejected the Applicant's application. \r\n\r\nThe Panel finds that the Regulation and the Sunrise Rules clearly and certainly provide that the burden of proof to demonstrate that it is the holder of prior right is with the Applicant.  It is therefore of crucial importance that the Respondent is provided with all the documentary evidence necessary for it to assess if the applicant is indeed the holder of a prior right. It is also basic requirement of any legal action to use the correct and full name of the Applicant as registered in the commercial register. \r\n\r\nThe Panel finds that the Respondent has no option to investigate or correct the difference between the Applicant name and the name prior right holder during the procedure of registration, because any right given to the Applicant to correct its defective application at this stage of the procedure would be unfair to the other applicants and would clearly be in breach of the Regulation and the Sunrise Rules. (Cases n° 706 (AUTOWELT) and 1710 (PARLOPHONE, EMI, EMIMUSIC, EMIRECORDS, ANGEL, THERAFT)). \r\n\r\n\r\nWhen there is a difference between the name of the Applicant, at the application letter, and the name of the owner of the prior right, the Applicant must submit official documents explaining this difference. Whereas the Applicant fails to do so, its application must be rejected and Respondent must then give the next applicant in line the opportunity to try to demonstrate its prior rights. \r\n\r\nTaking in consideration all above mentioned the Panel finds that the complaint must be rejected.",
    "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": "2006-09-29 00:00:00",
    "informal_english_translation": "The Applicant, named in the application letter as PubliCare (hereafter “the Applicant”) applied for the applied for the domain name PUBLICARE The Applicant submitted documentary evidence consisting of certificate from the German Trademark Office stating that the trademark \"PUBLICARE\" is registered by \"Publicare Marketing Communication Gmbh\".\r\nThe documentary evidence did not demonstrate, with no doubt, that the Applicant was the holder of a prior right the name of the Applicant is “PubliCare”, as stated on the application letter. The owner of the trademark is \"Publicare Marketing Communication Gmbh\".\r\nThe Complainant does not dispute that the names of the Applicant in the application letter and the name of the owner of the trademark are different. The Complainant contends that the reason why the name of the Applicant (\"PubliCare\") is not the same as the name of the owner of the trademark (\"Publicare Marketing Communication Gmbh\") is simply because PubliCare is the short form of the name \"Publicare Marketing Communication Gmbh\". \r\nThe Applicant did not submit any other documentary evidence explaining the difference between the name of the Applicant and name of the trademark holder. Therefore the Respondent could have legitimate doubts if the Applicant and the trademark owner is the same company. \"PubliCare\" could indeed very well be a different company from \"Publicare Marketing Communication Gmbh\". \r\nThere was no other evidence substantiate that the Applicant (PubliCare) is the same person, legal successor or is licensed by the owner of the trademark.  \r\nBased on the documentary evidence, the validation agent found that the Applicant did not demonstrate that it was the holder or the licensee of a prior right on the name PUBLICARE. Therefore, the Respondent rejected the Applicant's application. \r\nThe Panel finds that the Regulation and the Sunrise Rules clearly and certainly provide that the burden of proof to demonstrate that it is the holder of prior right is with the Applicant.  It is therefore of crucial importance that the Respondent is provided with all the documentary evidence necessary for it to assess if the applicant is indeed the holder of a prior right. It is also basic requirement of any legal action to use the correct and full name of the Applicant as registered in the commercial register. \r\nWhen there is a difference between the name of the Applicant, at the application letter, and the name of the owner of the prior right, the Applicant must submit official documents explaining this difference. Whereas the Applicant fails to do so, its application must be rejected and Respondent must then give the next applicant in line the opportunity to try to demonstrate its prior rights. \r\n\r\nTaking in consideration all above mentioned the Panel finds that the complaint must be rejected.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}