{
    "case_number": "CAC-ADREU-002496",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7th December 2005 the Complainant applied via its registrar Cronon AG for the domain name “neckermann.eu”. A registered German trademark „n neckermann“ for the domain name “neckermann” was claimed as a Prior Right. The Complainant argues that the Prior Right is a word and device trademark in which the word element “neckermann” is predominant, and can be clearly separated and distinguished from the device element, which consists of a graphic decoration without meaning. \r\n\r\nThe Respondent in his response pointed out to the trademark application of the Applicant which was submitted as documentary evidence and that all alphanumerical characters must also be contained in the domain name applied for. Because at present case the domain name does not consist of the complete name of the trademark application, as not all alphanumerical characters depicted in the trademark have been included in the domain name applied for, the Complaint must be rejected.",
    "other_legal_proceedings": "nihil",
    "discussion_and_findings": "The Complaint was submitted on the 2 August 2006. The contested decision was made on 2006-06-23. Pursuant to Section 26.1 of the Sunrise Rules, an ADR proceeding against the Registry may be initiated within 40 days of a decision by the Registry. The Panel finds that the Complaint was submitted on the last day of the appeal period  hence within the deadline and is admissible.\r\n\r\nThe Panel finds  that the trademark application for the Domain name “neckermann.eu” (Emphasis added) was based on the documentary evidence of the German Trade mark DE 397 51 262 consisted of the following alphanumeric characters “n neckermann” (Emphasis added) which should prove the prior right of the Applicant.\r\n\r\nThe Panel further finds  that the Complainant based his complaint on two main arguments on Prior Rights: \r\n1.\tA company name and trade name because the name “Neckermann” is well-known  \r\n2.\tTrade mark, because the Complainant’s Prior Right is a word and device trademark in which the word element “neckermann” is predominant, and can be clearly separated and distinguished from the device element, which consists of a graphic decoration without meaning.\r\n\r\nAd 1. As to the argumentation of the Complainant that company name and trade name “Neckermann” is well-known and that the business identifier of the Claimant \/ Applicant is “Neckermann”.\r\nThe Complainant argues that\r\n-\tespecially in Germany the name “Neckermann” is well-known\r\n-\tin the last seven years the annual turnover was constantly over one billion Euros\r\n-\tthe annual distribution  of the “Neckermann” main catalogue is 14 million pieces plus an additional summer catalogue at 5.5 million pieces and further 14 smaller special interest catalogues\r\n-\this foreign subsidiaries exist in France, Bosnia-Herzegovina, Croatia, Austria, Belgium, Poland, Switzerland, Serbia-Montenegro, Slovakia, the Netherlands, Slovenia, the Czech Republic and Ukraine and they have their own internet ordering homepages and catalogues\r\n-\ttherefore the Claimant is not only well-known in Germany but in all parts of Europe\r\n-\the uses the internet homepages: “www.neckermann.de”, “www.neckermann.fr”, “www.neckermann.ba”, “www.neckermann.hr”, “www.neckermann.at”, “www.neck.be”, “www.neckermann.ch”, “www.neckermann.sk”, “www.neck.nl”, \r\n“www.neckermann.si”, “www.neckermann.cz” or simply “www.neckermann.com”. \r\n\r\n\r\nRespondent is of the opinion that a company\/trade name may only be used in the second phase of the Sunrise period and  cites  Article 12 (2) of the Regulation which states: “Phased registration shall be comprised of two parts of two months each. During the first part of phased registration, only registered national and community trademarks, geographical indications, and the names and acronyms referred to in Article 10(3), may be applied for as domain names by holders or licensees of prior rights and by the public bodies mentioned in Article 10(1). During the second part of phased registration, the names that can be registered in the first part as well as names based on all other prior rights can be applied for as domain names by holders of prior rights on those names.” (Emphasis added) \r\n\r\nThe Panel considers as proven that the Application was filled on December 7, 2005, which was the starting date of the first part of the Sunrise period. During this period only registered trademarks, geographical indications and the names and acronyms referred to in Article 10 (3) of the Regulation will be accepted as prior rights. \r\nTherefore, the Panel to the Complainant's reference to its company name \/ trade name as a Prior Right could not accept. \r\n\r\nAd 2. As to the argumentation of the Complainant that \r\n-\tif the Complainant’s Prior Right is a trademark “n neckermann” and \r\n-\tthe domain name, which the Applicant applied for, is neckermann.eu, \r\n-\tthe rejection of the application of the Complainant conflicts with European Union Regulations. \r\n\r\nThe Complainant insists that his “word and device trademark in which the word element “neckermann” is predominant and can be clearly separated and distinguished from the device element, which consists of a graphic decoration without meaning. At the most the decoration might be interpreted as the outline of a house with a chimney or as a bridge.”\r\n\r\nThe Respondent in opposite cites the Article 10 (2) of the Regulation,  section 19 (2) of the Sunrise Rules and  the Article 14 of the Regulation. The Respondent further noted that if the domain name applied for does not consist of the complete name of that prior right, it is insufficient to be the holder of a prior right so as to be granted a .eu domain name during the Sunrise Period.\r\nThe Panel has to consider the facts of the case according to Article 10 (1), Article 10 (2) and Article 14 of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\") and with the section 19 (2) of the Sunrise Rules.\r\n\r\nThe Panel finds out that the Prior Right on which the application of the Complainant for the domain name neckermann.eu was based, was the German word and device trade mark DE 397 51 262 “n neckermann ” (Emphasis added), which consists of of the word neckermann and stylized letter n above the word neckermann. \r\nThe Complainant submitted namely even with the Complaint as the supporting evidence at the present ADR proceeding the documentation of a further German word Trademark DE 397 02 329 of the Complainant\/Applicant, which consists really and only of the word “Neckermann” (Emphasis added).  \r\nThe Panel does not understand why the Applicant did not submit in the deadline determined in the Section 2 (1) (i) of the Sunrise Rules, the German word Trademark DE 397 02 329 which consists only of the word “Neckermann” (Emphasis added) and has submit the German word and device trade mark DE 397 51 262 “n neckermann ” (Emphasis added) but applying for the domain name neckermann. eu.\r\nThe Section 2 (1) (i) of the Sunrise Rules states, that the receipt of Documentary Evidence by the Processing Agent  has to be obtained within 40 calendar days following the date of receipt of the Application by the Registry. \r\nIn the case at hand the Complainant submitted the Documentary Evidence about the German word Trademark DE 397 02 329 which consists only of the word “Neckermann” (Emphasis added) till on the 2.8.2006, thus after the in the Section 2 (1) (i) of the Sunrise Rules determined deadline. The Panel cannot take into account Documentary Evidence provided this late and has to take into consideration\/consider Documentary Evidence provided within the deadline stated in the Section 2 (1) (i) of the Sunrise Rules.\r\n\r\nThe Panel could not accept even the argumentation of the Complainant that the device element in the trademark n neckermann, which consists of a stylized letter n above the word neckermann, is without meaning and can be clearly separated and distinguished.\r\nThis allegation is contradicted by the Complainant himself when he  applied   for the trade mark “Neckermann” (Emphasis added)  on the 22.1.1997 and for the trade mark “n neckermann” (Emphasis added) he applied on the 28.10.1997.  If the trade mark “n neckermann” including stylized letter n above the word neckermann would be insignificant or a “mere decoration might be interpreted as the outline of a house with a chimney or as a bridge”, it is clear that the Complainant would not apply for such trade mark and Deutsches Patentamt would, without any doubt, not accept trade mark without any “ability to be distinguished”. \r\nThe Panel is of the opinion that the stylized “n” in the word and device trade mark of the Applicant (n neckermann) must indeed be interpreted, for the purposes of the Regulation and the Sunrise Rules, as an alphanumeric character.\r\nThe Panel concludes that not all alphanumeric characters of the trade mark of the applicant “n neckermann” (Emphasis added) were included in the application and as well were not applied for domain name “neckermann.eu” (Emphasis added), which violates Article 10.2 of the Regulation and section 19.2 of the Sunrise Rules.\r\nThe Applicant would be entitled, under the Sunrise Rules, to the domain name “n neckermann” (Emphasis added) but is not entitled to the domain name “neckermann” (Emphasis added).  \r\n\r\nThe Panel finds out that the present case from the point of view of the use and interpretation of, in particular of the Article 10 (2) of the Regulations and of the section 19 (2) of the Sunrise Rules is very similar to cases ADR no. 01053 (SANTOS), ADR no. 1438 (ELLISON), ADR no. 713 (HUETTINGER), and ADR no. 487 (BENTLEY), where identical situations were at hand. The Panel did not find any reason for a different consideration of the facts of the case. \r\n\r\nFor all the foregoing reasons, in accordance with Paragraphs B 12 (b) and (c) of the Rules, the Panel orders that the Complaint is Denied.",
    "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": "2006-11-06 00:00:00",
    "informal_english_translation": "On 7th December 2005 the Complainant applied via its registrar Cronon AG for the domain name “neckermann.eu”. A registered German trademark „n neckermann“ for the domain name “neckermann” was claimed as a Prior Right. The Complainant argues that the Prior Right is a word and device trademark in which the word element “neckermann” is predominant, and can be clearly separated and distinguished from the device element, which consists of a graphic decoration without meaning. \r\nThe Respondent argued with Article 10 (1) (2), with Section 19 (2) of the Sunrise Rules and made a proposal to reject the complaint.\r\nThe Panel finds that the Complainant based his complaint on two main arguments on Prior Rights: \r\n1.\tA company name and trade name because the name “Neckermann” is well-known  \r\n2.\tTrade mark, because the Complainant’s Prior Right is a word and device trademark in which the word element “neckermann” is predominant, and can be clearly separated and distinguished from the device element, which consists of a graphic decoration without meaning.\r\nAd 1) The Panel is of the opinion that a company\/trade name may only be used in the second phase of the Sunrise period, which is not the case at hand.\r\nAd 2) The Panel has to consider the facts of the case according to Article 10 (1), Article 10 (2) and Article 14 of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\") and with the section 19 (2) of the Sunrise Rules.\r\nThe Panel finds out that the Prior Right on which the application of the Complainant for the domain name neckermann.eu was based, was the German word and device trade mark DE 397 51 262 “n neckermann ” (Emphasis added), which consists of of the word neckermann and stylized letter n above the word neckermann. \r\nThe Panel is of the opinion that the stylized “n” (Emphasis added) in the word and device trade mark of the Applicant (n neckermann) must indeed be interpreted, for the purposes of the Regulation and the Sunrise Rules, as an alphanumeric character.\r\nThe Panel concludes that not all alphanumeric characters of the trade mark of the applicant “n neckermann” (Emphasis added) were included in the application and as well were not applied for domain name “neckermann.eu” (Emphasis added), which violates Article 10.2 of the Regulation and section 19.2 of the Sunrise Rules.\r\nFor all the foregoing reasons, in accordance with Paragraphs B 12 (b) and (c) of the Rules, the Panel orders that the Complaint is Denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}