{
    "case_number": "CAC-ADREU-002385",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a German company registered on  the Amtsgericht Rheine commercial register on 2nd February 1973 under the name “Gehl GmbH”. \r\n \r\nOn 4th March 1999, an American company (“Gehl Company”) purchased the Complainant. \r\n\r\nIn July 2003, the Complainant changed its name from “Gehl Gmbh” to “Gehl Europe Gmbh”.\r\n\r\n“Gehl Company” is the proprietor of CTM Registration No. 208900 GEHL. \r\n\r\nComplainant has been trading by reference to the trade mark GEHL under licence from “Gehl Company”.\r\n\r\nOn 13th December 2005 at 15:19:30, an application for the domain name GEHL.EU was made under the .eu Sunrise Rule. \r\n\r\nComplainant explains that the application was made by its ISP and that it is believed that the Complainant’s name was rendered in the application in the form of its previous name (“Gehl GmbH”) and not in the form of its new name since July 2003 (“Gehl Europe GmbH”).\r\n\r\nThe Documentary Evidence provided in time comprises notably:\r\n\r\n-\ta Copy of the CTM Registration No. 208900 GEHL\r\n\r\n-\tthe standard “Declaration for a Registered Trade Mark (.eu Phased Registration)” executed by “Gehl Company” in favor of “Gehl Europe GmbH”.",
    "other_legal_proceedings": "None",
    "discussion_and_findings": "Respondent is right to insist on the fact that the Complainant doesn’t deny its “mistake”. As a matter of fact, the name of the Applicant (\"Gehl Gmbh\") did not exactly match the name of the trademark holder \/ licensee.\r\n\r\nIs this sole fact sufficient for the validation agent (and Respondent) to conclude that the Applicant did not demonstrate that it was the holder of the claimed prior rights?\r\n\r\n\r\n\r\nAs ruled in case 642 (CRUX), the issue is whether the acquisition of rights (based even on prior rights) in the European Union will depend on the question of whether the applicant has filled in correctly a form, or whether such acquisition will depend on sound and thorough assessment of the filings of the applicants, based on communication with the applicants.  \r\n\r\nThe Panel shall not use any automated processes and the Panel is of the opinion that current legal rules governing the registration process of EU domain names contain sound provisions, which could have been used by the Respondent during the registration process.  \r\n\r\nReference is made, among others, to Recital 12 of the Regulation 874\/2004, under which the aim of the registration process is to ensure that holders of prior rights have appropriate opportunities to register names on which they hold prior rights. It further follows from this recital that validation agents should assess rights claimed for a particular name properly. Reference is further made to Article 14 of the Regulation No 874\/2004, under which the validation agent should examine the application.\r\n\r\nUnder Sunrise Rules, Article 21.3, the validation agent may, at his own discretion, conduct investigation into the circumstances of the respective application.\r\n\r\nThe Panel appreciates the high number of application received and processed by the Respondent, and the Panel also understands the tendency of the Respondent to apply automated processes or to adopt a formalistic approach to cope with all these applications.\r\n\r\nThe respective legal provisions cited above put the Respondent under clear legal obligation to examine the application (Art. 14 of the Regulation 874\/2004) and to assess the respective right of the applicant (recital 12 of the Regulation 874\/2004.\r\n\r\nIn the opinion of the Panel, these obligations to examine and assess are clearly in conflict with the absolute idea of an uncompromised automated process or a disproportionate formalistic approach.\r\n\r\nThe Panel should, under the ADR, however provide the necessary corrections to procedures and decisions of the Respondent, where the facts of the case allows so, and where such procedure is admissible under the ADR Rules and the respective legal provisions governing the registration process.\r\n\r\n\r\n\r\nFacts are as such:\r\n\r\n-\tThe name of the Applicant and the name of the Complainant \/ Licensee are differentiated only by a geographical indication “Europe”;\r\n\r\n-\tThe name of the Community Trade Mark Registration Holder and the name of the Applicant are differentiated only by the terms, “Company”\/“GmbH”;\r\n\r\n-\tThe domain name GEHL.EU reproduces without any subtraction or addition the distinctive part of the Complainant’s old and new names and the whole of the trade mark right holder’s name;\r\n\r\n-\tThe distinctive part of the right holder’s name and the Applicant’s name are identical, and refers directly to the trademark; \r\n\r\n-\tThe address of the Applicant and the address of the Licensee are identical.\r\n\r\n\r\n\r\nIn the Panel view, it was within the powers and possibilities of the Respondent to ask the Complainant for explanation of the names used in the application form and the Respondent could have proceeded in compliance with the above mentioned legal provisions. \r\n\r\nThe Respondent decided, within his discretionary power, not to do so during the registration proceeding.\r\n\r\nTaking into consideration all the relevant facts of the case the Panel decides to provide for the necessary correction of the procedure of the Respondent.\r\n\r\nEventually, the Panel wishes to underlines that it fully supports Respondent’s view that the latter had no right to “speculate” on an Applicant’s right. This being said, there is far from speculation to assessment of a concrete case and, as case may be, reasonable use of the enquiry rights provided for in the Regulation.",
    "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 EURID's decision be annulled\r\n\r\nthe domain name GEHL be transferred to the Complainant",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-10-27 00:00:00",
    "informal_english_translation": "The Complainant doesn’t deny its “mistake”. As a matter of fact, the name of the Applicant (\"Gehl Europe GmbH\") did not exactly match the name of the trademark holder \/ licensee.\r\n\r\nIs this sole fact sufficient for the validation agent (and Respondent) to conclude that the Applicant did not demonstrate that it was the holder of the claimed prior rights?\r\n\r\nThe Panel appreciates the high number of application received and processed by the Respondent, and the Panel also understands the tendency of the Respondent to apply automated processes or to adopt a formalistic approach to cope with all these applications.\r\n\r\nThe respective legal provisions put the Respondent under clear legal obligation to examine the application (Art. 14 of the Regulation 874\/2004) and to assess the respective right of the applicant (recital 12 of the Regulation 874\/2004). See also Article 21.3 of the Sunrise Rules.\r\n\r\nBased on the facts of the case, in the Panel view, it was within the powers and possibilities of the Respondent to ask the Complainant for explanation of the names used in the application form and the Respondent could have proceeded in compliance with the above mentioned legal provisions. \r\n\r\nThe Respondent decided, within his discretionary power, not to do so during the registration proceeding. Taking into consideration all the relevant facts of the case the Panel decides to provide for the necessary correction of the procedure of the Respondent.\r\n\r\nThe Panel fully supports Respondent’s view that the latter had no right to “speculate” on an Applicant’s right. This being said, there is far from speculation to assessment of a concrete case and, as case may be, reasonable use of the enquiry rights provided for in the Regulation.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}