{
    "case_number": "CAC-ADREU-002581",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "This decision arises from a complaint filed by the French entity Federation du Club Vosgien (\"the Complainant\"), against the decision by EURid (\"the Respondent\"), to reject the application for the  domain name sentier-de-pays.eu (“the disputed domain name”) filed by the Complainant. \r\n\r\nThe Complainant applied for the disputed Domain Name on 07 December 2005 under the first part of the phased registration period.\r\n\r\nThe Respondent refused the application on the basis that the French trade mark certificate provided by the Complainant could not be rearded as sufficient documentary evidence to support a claim that the Complainant was holder of a registered trademark as required under the first part of the phased registration period.\r\n\r\nOn 27 July 2006, the Complainant filed a complaint with the Czech Arbitration Court, asking to cancel the decision of the Respondent to refuse the application for the disputed domain names.  On 01 August 2006, the Czech Arbitration Court informed the EURid about the complaint and requested it to disclose information and documentary evidence related to the disputed Domain Name. After having received this information and after having made the final Complaint check the Czech Arbitration Court notified the Responsdent of the commencement of the ADR proceedings on 14 August 2006.\r\n\r\nA response was filed on 02 October 2006 and the Panel was appointed on 04 October 2006. On 18 October 2006 both parties to the proceedings filed supplementary submissions.",
    "other_legal_proceedings": "The Panel has not been informed of nor is it aware of any other legal proceedings related to the disputed domain name",
    "discussion_and_findings": "On the formalities\r\n\r\n1. Lack of motivation\r\n\r\nNothing in the rules governing the phased registration period obliges EURid to state and make public any motivation in immediate connection with the decision to reject an application for a domain name filed during this period. The Panel agrees with the Complainant that it puts the domain name applicant in a rather difficult position, since it is difficult if not impossible to know whether there is a reason to challenge the decision, which again means that a complaint must be based on assumptions rather than facts. However, if the applicant files a complaint in accordance with Art 22 1 (b) of the Regulation EURid will provide the reasoning in their response and Complainant will have the opportunity to file additional observations. As in case 1614 TELENET the Panel finds that both parties have been given a fair opportunity to present their case and that the brevity of the initial notification of the decision to the Complainant has not affected its rights. \r\n        \r\n2. Late filing of response\r\n \r\nIn cases like the present one EURid acts both as Registry and Respondent. In their capacity of Registry EURid was informed of the filing of the complaint on 09 august 2006, and in their capacity of Respondent they were informed of the commencement of the ADR proceeding on 14 August 2006.\r\n\r\nThe various time limits set out in the ADR Rules also apply for EURid as Respondent, but in order to be able to administer the vast number of complaints filed against EURid, in an effective way the Czech Arbitration Court and EURid has agreed on a standard approach that is described above under B. In effect this means that if EURid is a Respondent, the period of thirty (30) working days for submitting the Response always begins after the term of five (5) days from the date of notification of the commencement of the respective ADR Proceeding.  Applying this standard of calculating the relevant time limit the Response was actually filed on time.\r\n\r\nConsequently, the Panel finds no basis for revoking the decision on this ground. The Panel notes in this context that although a Panel is not  required to consider a Response filed late it has the discretion to decide to accept it according to the ADR Rules paragraph 8, and that it would have been inclined to admit the Response even if it had been filed late.  \r\n\r\n3. On the substance \r\n\r\nThe Complainant’s complaint is made pursuant to Article 22(1)(b) of EC Regulation No. 874\/2004, which provides that an ADR procedure may be initiated by any party where a decision taken by the Registry conflicts with this Regulation or with EC Regulation No. 733\/2002. Pursuant to Article 22(11) second subparagraph of EC Regulation No. 874\/2004, the sole purpose of these proceedings is accordingly to determine whether the decision taken by the Respondent was in accordance with the EC Regulation No. 874\/2004 or EC Regulation No. 733\/2002. \r\n\r\nThe relevant provisions of EC Regulation No. 874\/2004 which require particular consideration are as follows: \r\n\r\nArticle 10(1): Holders of prior rights recognised 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. \r\n\r\n‘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. \r\n[…]\r\n\r\nArticle 12 (2) third paragraph: During the first  part of the phased registration only registered national or Community trademarks……….may be applied for as domain names….\r\n\r\nArticle 14 first paragraph: All 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. \r\n\r\nArticle 14 fourth paragraph: 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 documentary evidence shall be submitted to a validation agent indicated by the Registry. 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 by this deadline, the application for the domain name shall be rejected. \r\n\r\nFurther Section 11 (3) of the Sunrise Rules states: The Applicant must be the holder (or licensee, where applicable) of the Prior Right claimed no later than the date on which the Application is received by the Registry, on which date the Prior Right must be valid, which means that it must be in full force and effect.\r\n\r\nThe Complainant requested the disputed domain names during the first part of the phased registration period on the basis of a French trademark. The question in this case is whether the provided certificate was sufficient proof that the applicant (Complainant) had a registered trademark at the time of the filing of the application for the rejected domain name. \r\n\r\nThe furnished evidence is entitled “CERTIFICAT D´ENREGISTREMENT”. The document itself has no date stamp. The document merely refers to the fact that the registration (“cet enregistrement”) will be published in the official bulletin on 23 December 2005.\r\n\r\nAccording to the provision of chapter II of Book VII of the French Intellectual Property Code there is a distinction between “application for registration” and “registration”. \r\n\r\nIn L.712-2 it is thus stated that “applications for registration” shall be published. In 712-3 it is said that during a period of two months from the date of this publication any concerned person may submit observations on the application to INPI, just as oppositions may be filed during this period in accordance with L. 712-4. In L. 712-7 it is stated that “an application for registration shall be rejected” if the specific requirements that are referred to are have not been met, which in (c) includes “if opposition to the application … is upheld”. \r\n\r\nDespite the wording of the provided certificate the wording of the French Code indicates that the application for a registration of a trademark is to be regarded as an application at least until the date of publication. The fact that - if a mark is registered - not only has effect from the date of application cf. L.712-1 second paragraph but also gets the application date as registration date does not alter this assessment.\r\n\r\nThe Panel notes that the Complainant has contested that the date of publication is the relevant date and Complainant has inter alia referred to the fact that the owner of the trademark is actually notified of the publication of the registration before the actual publication. However, the Complainant has not put forward information on what date the certificate was issued by INPI and\/or received by the applicant nor provided any information on what legal relevance this notification may have for the purpose of determining whether the applied trademark is registered.\r\n\r\nThe Panel further notes that it shall take a decision in the present case and based on the facts and arguments presented before it. Respondent appears to have made a contradictory decision based on the same documentary evidence in the Complainants application for sentierdepays.eu, and although it is quite understandable that Complainant refers to this fact Section 22(4) of the Sunrise Rules nevertheless clearly says that such decision do not have legal precedence.  \r\n\r\nConsequently, the Panel finds that the Complainant has not furnished the documentary evidence that is necessary to support the claim that Complainant - at the date of filing of the contested domain name -was the holder of a trade mark registration. The decision of the Respondent to reject the application was thus in compliance with Article 10(1), Article 14 first and fourth paragraph of EC Regulation No. 874\/2004.",
    "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 initial complaint contested the rejection of the Complainants application based on the arguments that the rejection was not motivated and that the Complainant was entitled to be granted the domain name since it fulflled all the eligibility requirements and had met all requirements for supplying documentary evidence of its rights. In its supplementary filing the Complainant further claimed that the response was filed late and therefore should be disregarded by the Panel.\r\n\r\nAs to the lack of motivation of the initial rejection of the application by EURid the Panel found Nothing in the rules governing the phased registration period obliges EURid to state and make public any motivation in immediate connection with the decision to reject an application for a domain name filed during this period. If the applicant files a complaint in accordance with Art 22 1 (b) of the Regulation EURid will provide the reasoning in their response and Complainant will have the opportunity to file additional observations. Since both parties are given a fair opportunity to present their case under the ADR procedure the lack of motivation can not in itself lead to a revocation of the decision.\r\n\r\nOn the question of the timely filing of the Response the Panel cannot follow the Complainants claims. The Panel finds that the explanation given by the Czech Arbitration Court on how the time limits are calculated in cases like the present one is in accordance with the ADR Rules and that the time limits have been met in the concrete case.\r\n\r\nOn the substantive part of the complaint the Panel finds that the Complainant did not submit the necessary evidendce to support its claim that Complainant on the date of application of the contested domain name was the proprietor of a registered trade mark. The fact that the Respondent had accepted another sunrise application from the Complainant based on the same documentary evidence did not bind the Panel.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}