{ "case_number": "CAC-ADREU-002448", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Complainant, Eco Economy Tours, has requested annulment of the decision made by the Respondent, EURid, regarding the domain name . The Complainant has further requested the disputed domain name to be transferred to the Complainant.\r\n\r\nThe disputed domain name was applied by the Complainant during the first phase of the phased registration period, i.e. the Sunrise I period. \r\n\r\nThe Complainant submitted documentary evidence on its registered national German trademark ECO TOURS to the validation agent timely within the 40 day deadline given.\r\n\r\nThe Respondent refused the Complainant’s application on grounds that the documentary evidence was not sufficient to prove the claimed prior right.\r\n\r\nThe Complaint was first filed in German on 27 July 2006 and upon the request by ADR Centre later filed in English, which is the language of the ADR Proceedings in this case. The hardcopy version of the amended Complaint in English was received by the ADR Centre on 14 August 2006. The formal date of the commencement of the ADR Proceeding is 15 August 2006.\r\n\r\nThe Respondent filed a response to Complaint on 2 October 2006.\r\n\r\nThe Complainant filed on 24 October 2006.a Nonstandard Communication in order to produce further arguments against the decision made by the Respondent.", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings in relation to the disputed domain name .", "discussion_and_findings": "The Panel has considered the relevance of the unsolicited further Communication submitted by the Complainant and has decided to take the communication into account when deciding on the case. This is due to that the Panel is willing to gain as much information as possible on the circumstances of the case in order to render a justified decision.\r\n\r\nThe Article 14 (4) of the Commission Regulation (EC) 874\/2004 states that the Applicant must submit documentary evidence showing that he or she is the holder of the prior right claimed on the name in question. Based on the Article 14 (10) 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 Article 14.\r\n\r\nThe Section 20 (3) of the Sunrise Rules provides that in case the documentary evidence provided does not clearly indicate the name of the applicant as being the holder or the licensee 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 or company indicated in the documentary evidence as being the holder of the prior right.\r\n\r\nThe Section 21 (2) of the Sunrise Rules states that the validation agent determines exclusively on the basis of a prima facie review of the submitted documentary evidence if the applicant has a valid prior right to the applied domain name. Additionally, the Section 21 (3) gives the validation agent a right in its sole discretion to conduct further investigations into the circumstances of the application.\r\n\r\nThe name of the Complainant (i.e. the Applicant) Eco Economy Tours was different from the name indicated in the trademark registration certificate as the name of the holder of the trademark right: eco ECONOMY TOURS Reise und Service GmbH. The name of the Complainant was also different from the name indicated in the trademark registration renewal certificate as the name of the holder of the renewed trademark right: ECONOMY TOURS Reise und Service GmbH.\r\n\r\nFurther, the address of the Complainant was different from the address indicated in the trademark registration certificate as the address of the holder of the trademark right and also different from the address indicated in the trademark registration renewal certificate as the address of the holder of the renewed trademark registration.\r\n\r\nAt the time of submitting the documentary evidence to the validation agent the Complainant did not submit any official documentation evidencing that the Complainant (i.e. the Applicant) is the same company as the holder of the trademark right, which was claimed as a prior right.\r\n\r\nIn the Complaint the Complainant has not submitted any such documentation, which would clearly evidence that the Complainant is the same company as the holder of the trademark right, which was claimed as a prior right. Neither has the Complainant provided such documentation in their further writ. Further, the Complainant has given no explanation on why the addresses of the Complainant and the trademark holders are all different from one another.\r\n\r\nIn accordance with the Commission Regulation (EC) 874\/2004 and the Sunrise Rules the burden of proof on demonstrating that the Applicant of a .eu domain name is the holder of the prior right claimed in the application is on the Applicant. Without documentation evidencing that the Complainant is the same company as the holder of the trademark registration no. 1017054 ECO TOURS, which was claimed as a prior right in the application for the domain name , it was not clear to the validation agent whether the Applicant was the same company as or the legal successor to company indicated in the documentary evidence as the holder of the prior right. \r\n\r\nEven if the validation agent had conducted investigations of its own, it remains very questionable whether it would have been able to conclude whether or not the three companies were one and the same, as the circumstances have not become clear to the Panel even though the Panel has carefully examined all the submissions made by the Complainant and additionally has conducted internet searches on its own initiative. \r\n\r\nEven though it can well be argued that the reasoning for rejection made by the Respondent should be more exhaustive, it must be noted that the time scaled process created for the phased Sunrise registrations is not likely in practice to allow truly well founded reasoning in each notification of rejection. \r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and therefore rejects the Complaint.", "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": "2006-11-01 00:00:00", "informal_english_translation": "The Complainant, Eco Economy Tours, has requested annulment of the decision made by the Respondent, EURid, regarding the domain name . The Complainant has further requested the disputed domain name to be transferred to the Complainant.\r\n\r\nThe disputed domain name was applied by the Complainant during the first phase of the phased registration period, i.e. the Sunrise I period. The Complainant timely submitted documentary evidence on its registered national German trademark ECO TOURS to the validation agent. The Respondent refused the Complainant’s application on grounds that the documentary evidence was not sufficient to prove the claimed prior right.\r\n\r\nThe name of the Complainant (i.e. the Applicant in the application) Eco Economy Tours was different from the name indicated in the trademark registration certificate as the name of the holder of the trademark right: eco ECONOMY TOURS Reise und Service GmbH. The name of the Complainant was also different from the name indicated in the trademark registration renewal certificate as the name of the holder of the renewed trademark right: ECONOMY TOURS Reise und Service GmbH. Further, the address of the Complainant was different from the address indicated in the trademark registration certificate as the address of the holder of the trademark right and also different from the address indicated in the trademark registration renewal certificate as the address of the holder of the renewed trademark registration.\r\n\r\nIn accordance with the Commission Regulation (EC) 874\/2004 and the Sunrise Rules the burden of proof on demonstrating that the Applicant of a .eu domain name is the holder of the prior right claimed in the application is on the Applicant. Without documentation evidencing that the Complainant is the same company as the holder of the trademark registration no. 1017054 ECO TOURS, which was claimed as a prior right in the application for the domain name , it was not clear to the validation agent whether the Applicant was the same company as or the legal successor to company indicated in the documentary evidence as the holder of the prior right. \r\n\r\nEven if the validation agent had conducted investigation of its own, it remains very questionable whether it would have been able to conclude whether or not the three companies were one and the same, as the circumstances have not become clear to the Panel even though the Panel has carefully examined all the submissions made by the Complainant and additionally has conducted internet searches on its own initiative. \r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and therefore rejects the Complaint.", "decision_domains": [], "panelist": null, "panellists_text": null }