{
    "case_number": "CAC-ADREU-002621",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a German company called “HBO SystemCenter GmbH & Co KG”. \r\n\r\nThis is the name of Complainant since March 2006. \r\n\r\nBefore that date, the name of the Complainant was “H.B.O. Einkauf und Marketing GmbH & Co”\r\n\r\nPreviously, the name of the Complainant was still different: “H.B.O. Einkauf-GmbH & Co KG”.\r\n\r\nThe Complainant is the owner of a community trademark “Motorland” registered since 1998. At the time of the registration, the name of the company was the third one mentioned here above: “H.B.O. Einkauf-GmbH & Co KG”. \r\n\r\nIn July 2006, due to the change of its name, the Complainant filed an application with the OHIM to have the database updated. It has been done in July 2006.\r\n\r\nThe application for motorland.eu was made in the name of:\r\n\r\nH.B.O. Einkauf und Marketing GmbH & Co\r\nIndustriestr. 8\r\n26160 Bad Zwischenahn\r\nGermany\r\n\r\nIt has been received on 07\/12\/2005 11:34:40.467, i.e. during the Sunrise 1 period and it is based on the motorland trademark, and ranked # 1 by the Registry’s system.\r\n\r\nThe Documentary Evidence has been provided in time; it comprises the following documents:\r\n\r\n-\tthe standard cover letter \r\n\r\n-\ta copy of the certificate of registration for the CTM 000167585 MOTORLAND, in the name of “H.B.O. Einkauf-GmbH & Co KG”, Dietrichsweg, 64, 26127 Oldenbourg, Germany.",
    "other_legal_proceedings": "None",
    "discussion_and_findings": "Although the Panel shares Respondent’s view concerning the burden of the proof which is clearly on the Applicant’s side, as well as the fact that the ADR is not a second chance to correct deficiencies in the initial application, the Panel can’t support the view of the Respondent when it describes a system where, due to a strict application of the burden of the proof and a weak application of the other provisions of the Regulations, the assessment duty of the Registry is an empty shell that would justify a fully automated and clerical system.\r\n \r\n\r\noOo\r\n\r\n\r\nAs ruled in case 642 (CRUX), the issue is whether the acquisition of rights (based even on prior rights) in the European Union will depend on the question of whether the applicant has filled in correctly a form, or whether such acquisition will depend on sound and thorough assessment of the filings of the applicants, based on communication with the applicants.  \r\n\r\nThe Panel is of the opinion that current legal rules governing the registration process of EU domain names contain sound provisions, which create a balanced situation between the obligations of the applicant and those of the Registry.  \r\n\r\nReference is made, on the one side and among others, to the burden of the proof which is clearly on the Applicant’s side, as well as to the fact that the ADR is not a second chance to correct deficiencies in the initial application.\r\n\r\nReference is made, on the other side and among others, to Recital 12 of the Regulation 874\/2004, under which the aim of the registration process is to ensure that holders of prior rights have appropriate opportunities to register names on which they hold prior rights. It further follows from this recital that validation agents should assess rights claimed for a particular name properly. Reference is further made to Article 14 of the Regulation No 874\/2004, under which the validation agent should examine the application.\r\n\r\nUnder Sunrise Rules, Article 21.3, the validation agent may, at his own discretion, conduct investigation into the circumstances of the respective application.\r\n\r\nThe Panel appreciates the high number of application received and processed by the Respondent, and the Panel also understands the tendency of the Respondent to apply automated processes or to adopt a formalistic approach to cope with all these applications. \r\n\r\nBut the Panel also appreciates the respective legal provisions cited above which put the Respondent under a clear legal obligation to examine the application (Art. 14 of the Regulation 874\/2004) and to assess the respective right of the applicant (recital 12 of the Regulation 874\/2004. \r\n\r\nWithout prejudice to the obligations of the applicant, it is clear in the Panel view that these obligations to examine and assess are clearly in conflict with the absolute idea of an uncompromised automated process or a disproportionate formalistic approach.\r\n\r\nAlso, the Regulation created a thorough legal scheme for ADR. Where would be the sense of this if the Panel was only supposed to verify that a clerical system based on a strict formalistic approach was applied? There was no need for hiring dozens of prominent lawyers and university teachers for such verification, or to develop a comprehensive set of procedure rules. On the contrary, as ruled in CRUX, the Panel received the power, under the ADR, to provide the necessary corrections to procedures and decisions of the Respondent, where the facts of the case allows so, and where such procedure is admissible under the ADR Rules and the respective legal provisions governing the registration process.\r\n\r\n\r\noOo\r\n\r\n\r\nBearing this in mind, it is time to come back to the facts of the case, in order to examine if, based on the documentary evidence provided to the verification agent, the Registry correctly assessed the situation.\r\n\r\nAs a matter of fact, the Applicant did not exactly match the prior right holder.\r\n\r\nContrary to what Complainant stated in its complaint, not only the addresses were different, but also the names of the companies.\r\n\r\nIs this sufficient for the validation agent (and Respondent) to conclude that the Applicant did not demonstrate that it was the holder of the claimed prior rights and to close the case?\r\n\r\nIn the Panel view, the answer is yes.\r\n\r\nFacts are as such:\r\n\r\n-\tThe name of the Applicant and the name of the CTM holder are similar but still quite different: \"H.B.O. Einkauf und Marketing GmbH & Co” on the one side, and “H.B.O. Einkauf-GmbH & Co KG”;\r\n\r\n-\tThis difference in the names is even more confusing since the addresses of both companies are very different: not only the streets but also the town are different; \r\n\r\n-\tThe domain name doesn’t reproduce the trademark. In fact, the trademark has nothing to do with the names of the companies. Of course, this is very frequent and not problematic at all, but the least that can be said is that it is not easy for a verification agent to draw a line that could link together two different names, two different addresses, and a trademark that is completely different (compare, on this issue, with the situation in GEHL (ADR 2385)) ;\r\n\r\nThe Panel is not convinced by the argument of the Complainant stating that the verification agent was supposed to check online in the OHIM database in order to correct the applicant’s deficiencies. Pursuant to the burden of the proof principle, it was to the applicant to prepare its case carefully, to detect the names and addresses problem, to draw the Registry\/verification agent’s attention on this issue and to provide reliable information for those differences. When it comes to the protection of the Complainant’s right, the latter can’t expect the Registry to be more careful than it was itself.",
    "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": "2006-11-02 00:00:00",
    "informal_english_translation": "Although the Panel shares Respondent’s view concerning the burden of the proof which is clearly on the Applicant’s side, as well as the fact that the ADR is not a second chance to correct deficiencies in the initial application, the Panel can’t support the view of the Respondent when it describes a system where, due to a strict application of the burden of the proof and a weak application of the other provisions of the Regulations, the assessment duty of the Registry is an empty shell that would justify a fully automated and clerical system.\r\n\r\nBearing this in mind, the Panel underlines that as a matter of fact, the Applicant did not exactly match the prior right holder. Contrary to what Complainant stated in its complaint, not only the addresses were different, but also the names of the companies.\r\n\r\nIs this sufficient for the validation agent (and Respondent) to conclude that the Applicant did not demonstrate that it was the holder of the claimed prior rights and to close the case? In the Panel view, after assessing all the relevant facts of the case, the answer is yes.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}