{ "case_number": "CAC-ADREU-002633", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Compainant is a Polish company, AGORA S.A., and the Respondent is the .eu domain name Registry, EURid.\r\n\r\nOn February 7, 2006, the Complainant applied for the domain names , , , , , , , , and .\r\n\r\nThe documentary evidence was received on March 17, 2006, which was before the March 19, 2006 deadline (40 days from February 7, 2006). \r\n\r\nThe Panel cannot determine when the Respondent informed the Complainant of the rejection of the application.\r\n\r\nThe Complainant filed its Complaint on August 4, 2006, annexing 62 exhibits. The Complainant requested the Czech Arbitration Court to require EURid to disclose the Documentary Evidence as defined in the Sunrise Rules. The Complainant seeks annulment of the disputed decisions taken by the Registry in respect of the ten domain names and the transfer or attribution thereof to the Complainant.\r\n\r\nOn August 7, 2006 the Payment Check was received by the Arbitration Center for .eu disputes. On the same day, the Arbitration Center for .EU disputes acknowledged the receipt of the Complaint and requested for EURid Verification. \r\n\r\nOn August 9, 2006 the Complainant filed two Nonstandard Communications, probably labouring under the misapprehension that the Request for EURid Verification was directed at the Complainant itself.\r\n\r\nAlso on August 17, 2006 EURid filed a Nonstandard Communication, annexing EURid's Verification and the Documentary Evidence concerning the case No. 02633.\r\n\r\nOn August 18, 2006 the Case Administrator did the Complaint Check. The Case Administrator verified that the Complaint met all the formal requirements. On the same day, the ADR Proceeding formally commenced.\r\n\r\nOn October 4, 2006 EURid responded to the Complaint. On the same day, the ADR Center for .EU acknowledged the receipt of the Response, and ran a Response Check. Also on the same day, Wolter Wefers Bettink, (incorrectly spelled as Wolfer Weffers Bettink) was selected as single Panelist. The Panelist submitted the Statement of Acceptance and Declaration of Impartiality and Independence the same day.\r\n\r\nAlso on October 4, 2006 the Parties were notified of the Appointment of the ADR Panel. The Projected Decision Date was set on November 4, 2006.\r\n\r\nOn October 9, 2006 the Case was transferred to the ADR Panel.", "other_legal_proceedings": "This Panel is not aware of any other pending or decided legal proceedings which relate to the Disputed Domain Names.", "discussion_and_findings": "GENERAL\r\n\r\nPursuant to Article 10 of the Regulation, during the period of phased registration it was possible for holders of prior rights to apply to register domain names. Such a registration shall consist of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists (Article 10, para. 2). In addition, Article 11 contains a limited number of exceptions to this principle, as far as spaces, special characters and punctuation are concerned. \r\n\r\nPursuant to Article 14 of the Regulation, the applicant for a domain name bears the burden of proof to demonstrate that it is the holder of a prior right, identical to the domain name applied for.\r\n\r\nThe purpose of an ADR proceeding against the Registry is to verify whether a decision made by the Registry conflicts with the Regulation (Article 22(1) of the Regulation). Article 14 of the Regulation provides that the Validation Agent examines whether the documentary evidence substantiates a prior right to the documentary evidence received with the application or within 40 days from the application. The decision of the Registry is based on this view. Therefore, the test to determine whether the decision taken by the Registry conflicts with the Regulations should in principle be based on the documentary evidence received with the application or within 40 days from the application (see also: Case 219 (ISL) and Case 1071 (ESSENCE)). \r\n\r\nThe Complainant requested the Czech Arbitration Court to require EURid to disclose the Documentary Evidence as defined in the Sunrise Rules. The Czech Arbitration Court subsequently requested EURid to disclose this information, which EURid has done, and the Panel has reviewed the documentary evidence for each specific domain name, as submitted by the Complainant when applying for the domain names. \r\n\r\n1. Domain name \r\nThe Panel finds that the decision of the Registry to refuse the registration of the domain name does not conflict with the Regulation. The complete name of the prior right \"auto-moto gazeta\" is not identical to the domain name applied for , nor shall it be deemed identical pursuant to Article 11 of the Regulation.\r\n\r\n2. Domain names and \r\nThe Panel finds that the decision of the Registry to refuse the registration of the domain name and does not conflict with the Regulation. The complete name of the prior right (\"praca gazeta\") is not identical to the domain names applied for ( and ), nor shall it be deemed identical pursuant to Article 11 of the Regulation.\r\n\r\nAlthough the Complainant annexed documentary evidence regarding the registration of the name \"Gazeta Praca\" as a press title to the Complaint, the Panel finds that the Complainant did not submit such documentary evidence within 40 days of its application. In view of Article 14 of the Regulation, the Panel will not take these documents in account in its decision.\r\n\r\n3. Domain names and \r\nThe Panel finds that the decision of the Registry to refuse the registration of the domain names and does not conflict with the Regulation. The complete name of the prior right (\"Gazeta Nieruchomosci\") is not identical to the domain names applied for ( and ), nor shall it be deemed identical pursuant to Article 11 of the Regulation. \r\n\r\nThis Panel only decides whether the decision taken by the Registry conflicts with the Regulations. Whether a third party by registering a domain name would act unfairly toward the Complainant is not the subject of these ADR proceedings.\r\n\r\n4. Domain name \r\nThis Panel finds that the decision of the Registry to refuse the registration of the domain name does not conflict with the Regulation. The documentary evidence submitted by the Complainant within 40 days of the application comprises invoices regarding the Polish domain name . The Panel is of the opinion that a domain name registration can be considered a prior right in the meaning of Article 10 of the Regulation, as it may constitute a business identifier. This is supported by Article 19.5 of the Sunrise Rules which provides that in case of “a name that includes an internet top-level domain (such as, but not limited to, .com, .net or .eu), the complete name for which a Prior Right exists includes that domain name suffix”. However, this article at the same time seals the fate of this application since the prior right concerns wyborcza.pl and the ‘.pl’ suffix is not included in the domain name. Therefore, the complete name of the prior right is not identical to the domain name. The documentary evidence regarding the registration of the name \"Gazeta Wyborcza\" as a press title, annexed to the Complaint, was not submitted within 40 days of the application and can therefore not be considered in this case. Moreover, such documentation may only provide evidence of rights to the name “Gazeta Wyborcza” which is not identical to the domain name. Consequently, the Panel finds that the Complainant has failed to prove the existence of a prior right in the name \"wyborcza\".\r\n\r\n5. Domain names and \r\nThe Panel finds that the decision of the Registry to refuse the registration of the domain names and does not conflict with the Regulation. The documentary evidence submitted by the Complainant within 40 days of the application consists of letters, invoices and other documents regarding the Polish domain names and and (what according to Respondent are trademark applications for) a Polish device mark \"AAABY.PL\" and \"blox.pl\". Article 13.1.(ii) of the Sunrise Rules states explicitly that a trade mark application shall not be considered a Prior Right. A domain name registration can be considered as a prior right in the meaning of Article 10 of the Regulation, as set out above. However, the prior rights to \"aaaby.pl\" and \"blox.pl\" are not identical to the domain names and . As the Complainant has failed to prove the existence of a prior right in the names \"aaaby\" and \"blox\", the Complaint is denied.\r\n\r\n6. Domain names and \r\nThe Panel finds that the decision of the Registry to refuse the registration of the domain names and does not conflict with the Regulation. The documentary evidence submitted by the Complainant within 40 days of the application consists of letters, invoices and other documents regarding the Polish domain names and commercial agreements and the front covers of the magazines Avanti and Dziecko. A domain name registration can be considered as a prior right in the meaning of Article 10 of the Regulation, as set out above. However, the prior rights to \"avantimoda.pl\" and \"edziecko.pl\" are not identical to the domain names and . \r\n\r\nThe Panel rejects Complainant's argument regarding its prior right in other business identifiers. The Complainant did not submit documentary evidence within 40 days of its application consisting of either an extract from an official register mentioning the date on which the trade name was registered, as provided by Article 16.5 of the Sunrise Rules, or an affidavit signed by a competent authority, a relevant final judgment by a court or an arbitration decision Article, as provided by Article 12.3 of the Sunrise Rules.", "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the Complaint is Denied.", "panelists": [ null ], "date_of_panel_decision": "2006-10-30 00:00:00", "informal_english_translation": "The Complainant contested the rejection made by the Respondent (EURid) to the Complainant's application for the domain names , , , , , , , , and . The Panel orders that the Complaint is Denied.\r\n\r\nThe Panel finds that, in the cases where the Complainant demostrates a prior right in a name, the complete names of the prior rights are not identical to the domain names applied for, nor shall they be deemed identical pursuant to Article 11 of the Regulation.\r\n\r\nThe Panel disregards the additional documentary evidence, annexed to the Complaint.", "decision_domains": [], "panelist": null, "panellists_text": null }