{
    "case_number": "CAC-ADREU-002473",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7 February 2006, Przedsiębiorstwo Produkcyjne “OKNOPLAST – Kraków” Spółka z ograniczoną odpowiedzialnością [hereinafter referred to as “the Complainant”] filed with EURID the applications for registration of the following domain names: \r\n1. www.oknoplast.eu \r\n2. www.oknoplastkrakow.eu \r\n3. www.oknoplast-krakow.eu\r\n4. www.oknazkrakowa.eu \r\nBy virtue of EURID’s disputed decision, all the aforementioned domain name applications were rejected; The complainant decided to challenge EURID’s decision and filed a complaint. The Complaint submitted by Przedsiębiorstwo Produkcyjne \"OKNOPLAST-Kraków\" Sp. z o.o., Marcin Bryniarski was received by e-mail on 2006-08-04 14:44:56 and in hardcopy on 2006-08-03 by the Czech Arbitration Court. In accordance with Paragraph B2 (a) of the .eu Dispute Resolution Rules (ADR Rules), the Czech Arbitration Court has verified that the Complaint satisfies the formal requirements of the ADR Rules and ADR Supplemental Rules of the Czech Arbitration Court. The payment in the required amount to the Czech Arbitration Court has been made by the Complainant. The formal date of the commencement of the ADR Proceeding is 2006-08-17, according to the Courts statement. The CAC acknowledged receipt of the Response on 2006-10-03 and appointed the undersigned to serve as a single Panelist on the 5th of October 2006.",
    "other_legal_proceedings": "No information with regard to other legal proceedings is known to the Panelist",
    "discussion_and_findings": "This is a dispute whose facts are obviously similar to a number of earlier cases brought before the CAC. The main issues are the following: First, the issue regarding the burden of proof of prior rights to a domain name. Second, the issue of the admissibility of new evidence, i.e. documentation filed during the ADR proceedings. Third, the issue concerning the importance of a trademark application as documentary evidence for a domain name registration bearing the same indication. \r\n1. Burden of proof\r\nThe relevant provisions on this point are Articles 10 and 14 of Regulation (EC) No 874\/2004 (hereafter \"the Regulation\").\r\nArticle 10 (1) of the Regulation states that: \"Holders of prior rights recognized or established by national and\/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of. eu domain starts. ‘Prior rights’ shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works\". Article 14 of the Regulation states that \"[a]ll claims for prior rights under Article 10(1) and (2) must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists. (…) 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. (…)The applicant shall submit the evidence in such a way that it shall be received by the validation agent within forty days from the submission of the application for the domain name. 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\nIn a series of decisions it is already established that the burden of proving a prior right lies with the applicant [see apart from the cases mentioned by the Respondent the following: Cases 1518, 1542, 1664, 1943, 2013, 2050, 2094, 2119, 2124, 2138, 2268, 2316, 2335, 2564]. In the present case the Complainant failed to produce to the Validation Agent the necessary documentary evidence within the 40 day term. \r\n2. Admissibility of new evidence\r\nWith regard to the domain names OKNOPLAST, OKNOPLASTKRAKOW and OKNOPLAST-KRAKOW, it is undisputed that the appropriate documentary evidence was presented by the Complainant for the first time during these proceedings. A large number of decisions have already established a case law rule under .eu ADR proceedings, namely that new evidence presented for the first time before the Panel, i.e. not within the 40 days period, as required by Art. 14 Reg. 874\/2004, are to be held inadmissible [see apart from the case law mentioned by the Respondent, cases 1518, 1665, 1943, 2013, 2022, 2055, 2087, 2094, 2119, 2124, 2190, 2268, 2316].   \r\nHand in hand with the above goes a second rule, namely that the only task for the Panel in these proceedings is to check the compliance of the decision taken by the Respondent with the Public Policy Rules. Hence, these proceedings may not serve as a “second chance”, in terms of providing applicants an option to remedy their imperfect original application that was rejected during the Sunrise Period (see cases 551, 810 1194, and 1537). \r\nConsequently, the belated reaction coming from the Complainant cannot be taken into account by the Panel. In this context I would like to repeat a meanwhile often mentioned passage from case 219, where panelist Mikkel Gudsøe stated the following: \"One could argue that sympathy is overruled by the applicable Regulations serving among other purposes the (cost-effective) functionality of the phased registration and the principles hereof\". \r\n3. The validity of trademark application under the registration process\r\nThis issue concerns solely the fourth domain name of the complainant’s application, namely the indication OKNAZKRAKOWA. It is clear from the wording of Art. 10 (2) and 12 (2) Reg. 874\/2004 that a trademark application is inappropriate to serve as a sufficient piece of documentary evidence. This view is further based on Section 13.1 (ii) of the Sunrise Rules, where it is clearly stated that a trademark application is not considered a prior right. This position has been already followed by a number of earlier decisions. Some of them are mentioned by the Respondent in its Response (see above). I would like to add some recent case law in the same direction, namely cases 1518, 1612, 2055, 2084, 2180, 2316 and 2422. The opposite view has been followed solely in case 2145. However, the factual background of the latter dispute is evidently divergent from those of the present case; Thus, it could not serve as a precedent.\r\nA final word on this matter concerns the retroactivity of trademark applications, an argument which was indirectly presented by the Complainant. In the case before hand, it is very important to underline that even today the Complainant did not produce any evidence of an actual trademark registration. Hence, the domain name application continues to rely on the trademark application dated from 31.10.2003. Nevertheless, even if the Complainant was able to present a trademark registration, the situation would not have been a different one. As Panelist Tuukka Ilkka Airaksinen stated in case 2422, \"[i]t is indeed an established principle of trademark laws in various jurisdictions that a registration confers exclusive rights to the mark as of the filing date. However, this “backdating” is done only at the date of registration, not before. Therefore, at the time of filing of the domain name application the Complainant did not hold exclusive rights to the trademark…\".",
    "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 seeks for the annulment of the Respondent’s decision to reject its application to register the disputed domain names, and the attribution of them to the Complainant. The application was rejected due to insufficient documentary evidence, namely lack of trademark registration certificates. The Complainant produced during the present proceedings trademark certificates for three out of four domain names. \r\nIt is held that it is already established that the burden of proving a prior right within the specific 40 days deadline, stipulated by Art. 14 Reg. 874\/2004 lies with the applicant. \r\nNew evidence presented for the first time before the Panel, i.e. not within the 40 days period, as required by Art. 14 Reg. 874\/2004, are to be held inadmissible under .eu ADR proceedings.\r\nA trademark application is inappropriate to serve as a sufficient piece of documentary evidence. The retroactive effect of a trademark application is not of importance within the .eu registration process, since the prior right has to be proved within the 40 days deadline, in accordance with Art. 14 Reg. 874\/2004.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}