{
    "case_number": "CAC-ADREU-002534",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "All capitalized terms not defined herein are used by reference to the various regulations and rules identified in this decision.\r\n\r\nThis complaint arises out of the interpretation and application of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“Regulation”), European Parliament and Council Regulation (EC) No 733\/2002 of April 22, 2002 (“EU Regulation”) and the .eu Domain Name Terms and Conditions and phased registration rules for domain name applications made during the phased registration period (“the Sunrise Rules” and the “Conditions”).\r\n\r\n\r\n\r\n1.\tThe domain name application proceeding\r\n\r\nV.O.F. ZEEFDRUKKERIJ BIELING, \"the Complainant\", applied for the domain name STICKERS.EU (\"Domain Name\") on 4 January 2006. \r\n This application was based on Complainant’s Benelux Trademark Registration for STICKERS.\r\n\r\nOn 6 January 2006, the Registrar Contact filed the application for the domain name STICKERS.EU in the name of Zeefdrukekrij Bieling instead of in the full name of Zeefdrukkerij Bieling vof\/Stickers.nl.\r\n\r\nOn 12 December 2005, V.O.F. Zeefdrukkerij Bieling filed an application for the registration of the trademark STICKERS in the Benelux Trade Marks Register in the name of Zeefdrukkerij Bieling vof\/Stickers.nl. On 19 December 2005, the figurative trademark STICKERS was registered.\r\n\r\nOn 10 February 2006 the Registrar submitted Documentary Evidence which shows that Complainant is the owner of the Benelux trademark STICKERS to the Validation Agent for the prior right of Complainant in the form of an extract from the online database of the Benelux Trademark Register. \r\n\r\nOn 23 June 2006 EURid informed Complainant that it had rejected Complainant’s application because, according to EURid, (the \"Respondent\"), the Documentary Evidence did not sufficiently prove Complainant’s right.\r\n  \r\n2.\tThe ADR proceeding\r\n\r\nOn 1 August 2006, Complainant submitted a Complaint to the ADR Center filed in English language against Respondent decision.\r\n\r\nOn 4 August 2006, the ADR Center notified that the Respondent has been notified of the Complaint and on its time of filing. \r\n\r\nOn 14 August 2006, the ADR Center confirmed the formal validity of the Complaint and notified Respondent that an ADR Proceeding has been commenced against it pursuant the Regulation and the EU Regulation.\r\n\r\nOn 2 October 2006, Respondent submitted a Response to the ADR Center. The ADR Center notified that the response was filed within the prescribed deadline.\r\n\r\nOn 6 October 2006, case number 2534 was transmitted by the ADR Center to the ADR Panel.\r\n\r\nOn 20 October 2006, the Complainant filed a non-standard communication (“NSC”) seeking amend the Complaint.",
    "other_legal_proceedings": "The Panel is not aware of other legal proceedings  which are pending or decided and which relate to the disputed domain name",
    "discussion_and_findings": "DISCUSSION AND FINDINGS\r\n\r\n1.  PROCEDURAL POINTS\r\n\r\n1.1\tDomain name lock status pending an ADR decision\r\n\r\nThere is no need for the Panel to order EURid to suspend any decision regarding the attribution of the domain name <stickers.eu> until this ADR Proceeding has been completed. This will have automatically been achieved by initiating the ADR Proceeding. The relevant provisions in this regard are Section 9(3)(b) of the .eu Domain Name Registration Terms and Conditions and the last sentence of Section B(1)(e) of the .eu Alternative Dispute Resolution Rules. The wording of these provisions may seem to apply to registered domain names only, which can no longer be “transferred” etc. after an ADR Proceeding has been initiated. It is the clear aim of these provisions, however, to preserve the current domain status whilst a an ADR proceeding is pending, whatever this domain’s status may currently be, i.e. whether or not the disputed domain name has already been registered.  \r\n\r\nIt is therefore standard practice that EURid places a “lock” on any disputed domain names for the duration of the ADR Proceeding. In the present case EURid has confirmed this lock for <stickers.eu> in its NSC of 11 August 2006.\r\n\r\n1.2\tDocumentary Evidence furnished during the ADR proceeding\r\n\r\nThe additional Documentary Evidence submitted by the Complainant during the ADR Proceeding are not relevant for deciding this case. \r\n\r\nPursuant to Article 14 of the Regulation, EURid may only accept, as Documentary Evidence, documents that are received by the Validation Agent within 40 days from the submission of the application for the domain name and in this case the 40 days period ended on 15 February 2006.\r\n\r\nConsequently, the Panel only has to decide whether EURid and the Validation Agent, based on the Documentary Evidence originally submitted by the Complainant prior to February 15, 2006, could make an informed decision as to the attribution of the Domain Name to the Applicant.  The Panel’s mission is not to act as a Validation Agent.\r\n\r\n2.  SUBSTANTIVE ISSUES\r\n\r\nIt is not disputed that the Applicant made a mistake in its application, by not providing the correct company name when the application for the domain name STICKERS.EU.\r\n\r\n2.1. Burden of proof to demonstrate a prior right\r\n\r\nThe question before this Panel is whether or not the Applicant provided sufficient evidence to the Validation Agent that it is the holder of a prior right.\r\n\r\nArticle 10 (1) of the Regulation states that only the holders of prior rights shall be eligible to apply to register domain names during the period of phased registration. \r\n\r\nArticle 14 of the Regulation imposes on the Applicant to submit Documentary Evidence showing that he or she is the holder of the prior right in the name.   Such Documentary Evidence is examined by the Validation Agent who determines based on such evidence whether the applicant has prior rights on the name.  It is thus for the Applicant to demonstrate his or her prior right in the domain name through the submitted documentary evidence.\r\n\r\nConsequently, the Panel agrees with the respondent which refers to the case ADR 1886 (GBG) which states that “…According to the Procedure laid out in the Regulation the relevant question is thus not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right. If an applicant fails to submit all documents which show that it is the owner of a prior right the application must be rejected\" and confirms that the burden of proof is on the Applicant to demonstrate that it is the holder of a prior right.\r\n\r\n2. Error regarding the company name\r\n\r\nThe Complainant does not dispute that the name of the Applicant “Zeefdrukekrij Bieling” and the name of the owner of the trademarks “Zeefdrukkerij Bieling vof\/Stickers.nl” are different.\r\n\r\n2.1\tDocumentary evidence\r\n\r\nReferring to the Sunrise rules, Section 20.3 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 Respondent notes that in the present case, the Applicant failed to explain the difference in the names of the Applicant and the owner of the trademark in the name and that without any further explanation it was in no position to determine whether the Applicant was entitled to rely on the claimed trademarks.\r\n\r\n2.2\tMiss-spelled name : “obvious or technical mistake”\r\n\r\nThe Complainant clearly admits that the name “Zeefdrukkerij” is miss- spelled as “Zeefdrukekrij”.\r\n\r\nAs stated in the Case No. 843 – STARFISH, the notion of “obvious” mistake should not be interpreted broadly. A miss-spelling or something written but not meant by the Applicant belongs to the class of obvious or technical mistakes.\r\n\r\nThe Panel finds that the third “e” placed between the “kk” instead of after these letters in the word “Zeefdrukekrij” is an obvious mistake. As a consequence, it is a non material error which can be considered as a minor error.\r\n\r\nSection 3 of Regulations 874\/2002 provides that the request for a domain name shall include, inter alia, the name and the address of the requesting party and further that any material inaccuracy in the name shall constitute a breach of terms of registration.\r\n\r\nSection 21(2) states that “the Validation Agent examines whether the Applicant has a Prior Right to the name exclusively on the basis of a prima facie review of the first set of Documentary Evidence received and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules”.\r\n\r\nSection 21(3) further states that “the Validation Agent is not obliged, but it is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced”.  If the regulator had added in these Rules the expression “in reasonableness” or “under exceptional circumstances the Validation Agent should investigate”, there would have been room for the Panel to evaluate the decision not to investigate.  But the Rules do not provide such language.\r\n\r\nThe Panel agrees that the Validation Agent cannot be expected to take initiatives to conduct additional investigations for each and every application.   Section 21(3) states clearly that it is the “sole discretion” of the Validation Agent.  Therefore, the Panel does not believe that it can decide for the Validation Agent whether it should or should not have conducted an investigation.\r\n\r\nA prima facie review as prescribed by Section 21(2) of the Sunrises Rules would highlight the misspelling.  However, the error is so obvious on its face that the Validation Agent without even having to conduct further investigations should have disregarded it. \r\n\r\n2.3 Omission to provide full name of owner\r\n\r\nThe company clearly admits that the company type “vof” and the addition “\/Stickers.nl” are omitted from the Application.\r\n\r\nThe question is whether the Validation Agent was obliged to investigate the ownership of the Prior Right claimed. Complainant contends that the Validation Agent, in view of the almost identical company names and the identical street addresses, should have suspected a mere clerical mistake, and should therefore have conducted further investigations as permitted by Section 21(3) of the Sunrise Rules.\r\n\r\nIn this case, although Documentary Evidence was provided, the name of the company given for the registration of the trademark differed obviously from the name of the Applicant itself. \r\n\r\nThe error resides in the omission in the Application to provide full name of the owner of the Prior Righ “Zeefdrukkerij Bieling vof\/Stickers.nl” and instead only provide “Zeefdrukkerij Bieling”.\r\n\r\nUnder Article 22(1) of the Regulation the Panel is directed to “decide whether a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No. 733\/2002”.\r\n\r\nWhen examining an application for a domain name, the Registry’s obligation is to examine whether the applicant holds a prior right to the domain name (Article 14 of the Regulation). The right must be verifiable by the presented documentary evidence. This shall demonstrate that the right exists and that the applicant is the holder of this right claimed on the domain name. In the presented case the documentary evidence submitted by the Complainant showed that “Zeefdrukkerij Bieling vof\/Stickers.nl” and not “Zeefdrukekrij Bieling” is the holder of the trade mark “STICKERS”. Therefore, the documentary evidence in support of the application for the domain name “stickers.eu” was incomplete.\r\n\r\nSection 21(2) states that “the Validation Agent examines whether the Applicant has a Prior Right to the name exclusively on the basis of a prima facie review of the first set of Documentary Evidence received and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules”.\r\n\r\nSection 21(3) further states that “the Validation Agent is not obliged, but it is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced”.\r\n\r\nA prima facie review as prescribed by Section 21(2) of the Sunrises Rules would highlight the incomplete name.  However, the mistakes although more important than a misspelling becomes so obvious on its face when the Application and Documentary Evidence are compared (everything is the same in the name except what is obviously an added bit \/stickers.nl and the details of both companies are identical) that the Validation Agent without even having to conduct further investigations should have disregarded it.  It could at its sole discretion have conducted further investigations to confirm its conclusion but the information provided could leave little doubt as to (1) the existence of a simple mistake that could easily be explained (by the limited spacing available to file an application or the laziness of a registrar) and 2 the fact that the Applicant and the Prior Right owner where one.\r\n\r\n\r\n\r\nFor all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panelist orders that EURid's decision be annulled and the domain name <stickers.eu> be registered in the name of Zeefdrukkerij Bieling vof\/Stickers.nl as per Section 27 (1)§3.  There is no reason to transfer the Domain Name to Complainant since Complainant, Applicant and the holder of the Prior Right are the same entity.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\n\r\nthe EURID's decision be annulled",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-11-02 00:00:00",
    "informal_english_translation": "Section 21(2) states that “the Validation Agent examines whether the Applicant has a Prior Right to the name exclusively on the basis of a prima facie review of the first set of Documentary Evidence received and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules”.\r\n\r\nSection 21(3) states that “the Validation Agent is not obliged, but it is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced”.  If the regulator had added in these Rules the expression “in reasonableness” or “under exceptional circumstances the Validation Agent should investigate”, there would have been room for the Panel to evaluate the decision not to investigate.  But the Rules do not provide such language.\r\n\r\nThe Panel agrees that the Validation Agent cannot be expected to take initiatives to conduct additional investigations for each and every application.   Section 21(3) states clearly that it is the “sole discretion” of the Validation Agent.  Therefore, the Panel does not believe that it can decide for the Validation Agent whether it should or should not have conducted an investigation.\r\n\r\nA prima facie review as prescribed by Section 21(2) of the Sunrises Rules would highlight the errors in the application.  However, the errors is so obvious on their face that the Validation Agent without even having to conduct further investigations should have disregarded them.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}