{
    "case_number": "CAC-ADREU-002712",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 16 March 2006, at 9:52:28, the Complainant filed a request for the registration of the domain name \"futaba.eu\" during phase one of the restricted registration period. The documentary evidence provided in support of the application consisted of a certificate of registration of the Complainant´s company, a list of trademarks registered for the in the  Japanese language and a Licence declaration for a registered trademark (German Trademark register, No. 1061068) between the parent trade mark holder and the Complainant licensee.  The Respondent received this documentary evidence on 17 March 2006. \r\n \r\nBy decision dated 28 June 2006, the Respondent rejected the Complainant´s request on the grounds that the prior right was not proven sufficiently.",
    "other_legal_proceedings": "The Panel is not aware of any legal proceedings that are pending or decided and which relate to the disputed domain name.",
    "discussion_and_findings": "This proceeding concerned the use by the Respondent of its discretion to investigate the existence of Prior Rights that are relied upon in support of an application for a domain name. The Respondent strongly defends the scope and use of its discretion to the extent that it resists the suggestion that it has any obligation to use it.\r\n\r\nActually, whether or not the Respondent has a discretion was not in dispute. Both parties say that it has. The Complainant main contention was, having used its discretion, the Respondent should not be permitted to ignore facts that it learns in the course its discretion, which knowledge may be of benefit to an applicant. As the Panel indicated in its second Interim Decision, the Respondent presented a persuasive argument.\r\n\r\nWhilst persuasive, the Panel felt it was not able to reach a decision without receiving evidence with regard to the email dated August 3, 2006 from the Respondent to the Complainant concerning the latter's application. In effect the proceeding turned on an issue of fact. \r\n\r\nThe Panel sought further submissions from the Respondent on the status and effect of the email. The Respondent was unable to produce for reasons the Panel accepts. Instead, the Respondent produced what turned out to be an extract (translated unofficially but adequately for the Panel's purposes). This extract strongly indicated that the Respondent had exercised its discretion to investigate the Complainant's prior rights to the domain. \r\n\r\nHowever, the extracted text from the email was ambiguous. It implied that there were in existence registered trade marks that related to the domain name relied upon. The Panel draws this implication because; firstly, the Respondent does not go on to point out that they do not establish the necessary prior rights in principle to the domain name. Secondly, it adds that they are registered to a company based in Japan and not to the Complainant.\r\n\r\nCoincidentally this compares to the fact that the License Declaration originally submitted by the Complainant reveals that the Licensor was a Japanese company, and on balance it would seem that the two references to Japanese companies are in fact references to the same company. If this was right then it appeared to the Panel that the Respondent was in possession of evidence that supported the Complainant's application. Indeed this was the thrust of the Complainant's contention.\r\n\r\nThe difficulty for the Panel at this point in the proceeding was that it had not established a full version of the facts in dispute, since the Complainant had failed to produce evidence in support of its defence. The Panel considered whether it should proceed to a decision as best it could. However, the Panel concluded that the Respondent should be given a further opportunity to address the key question posed in the Panel's  Interim Decision; this being, if the Respondent does decide to exercise its discretion to investigate an application, is it required to take notice of the information it obtains, even if this information supports an application.\r\n\r\nSubsequently, the Respondent was able to produce the email of August 3, together with an explanation as to its relevance.In the Respondent's submission, the fact that an employee of the Registry, carrying out a \"customer service\" function on his own initiative \"cannot be deemed to have been done by the validation agent pursuant section 21, 3 of the Sunrise Rules\"\r\n\r\nThe Panel is not convinced that this contention is right, nor is it clear how an investigation into an application can in one sense be the exercise of a discretion, and in another, be part of the Respondent's customer service function. Moreover, the Panel fails to see why the work of an employee of the Respondent acting in the course of his duties should be ignored. Finally, it is not clear how the Respondent can, on the one hand, claim an absolute discretion to investigate an application, but on the other assert that it \"cannot act as Validation Agent as it cannot act as Registrar.\" The two positions appear to be mutually exclusive and not what the .eu Regulation intended.\r\n\r\nThus, on the basis of the foregoing it appeared that this was a case in which the scope and effect of the Respondent's discretion would need to be examined in light of the .eu Regulation and the Sunrise Rules. However, in the final analysis the Panel concluded that the content of the email should not decide the outcome of this proceeding.\r\n\r\nA fact not expressly pointed out or relied upon by either party, but is obliquely touched upon by the Respondent, was that the email of August 3 was issued after the date of the Respondent's decision rejecting the application, which was issued on June 28, 2006. Thus even if the Respondent's discretion is absolute, and whether it was or was not duly or actually exercised, the fact is that the decision taken by the Respondent to reject the application was based entirely on the Documentary Evidence originally produced by the Complainant. As contended by the Respondent, and acknowledged by the Complainant, the Documentary Evidence was insufficient to show that the Complainant had Prior Rights to the domain name; thus it followed that the Respondent's decision was properly reached.\r\n\r\nOn reflection this no doubt will appear to the Complainant to be a harsh decision against it. However, the process of examining application is fixed by both .eu Regulation and the Sunrise Rules. Accordingly, the Panel is unable to agree with the Complainant that the Respondent was, at the time it rejected the Complainant's application, in possession of evidence proving the Complainant's Prior Rights to the domain name. ِAccordingly the Panel finds that it must reject the Complaint",
    "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": "2006-11-19 00:00:00",
    "informal_english_translation": "This proceeding concerned the use by the Respondent of its discretion to investigate Prior Rights in support of an application for a domain names. Whether or not the Respondent has a discretion was not in dispute. The Complainant main contention was, having used its discretion, the Respondent should not be permitted to ignore facts that it learns in the course its discretion, which knowledge may be of benefit to an applicant. It was suggested that the Respondent had investigated the application and found evidence that supported the application.\r\n\r\nSubsequently, the email was produced, and submissions made with regard to its status and effect. Although ambiguous it appeared to support the Complainant main contention.\r\n\r\nIn its defence, the Respondent's submitted that, as it had been \"investigation\" had been undertaken by an employee of the Registry  carrying out a \"customer service\" function on his own initiative, the investigation \"cannot be deemed to have been done by the validation agent pursuant section 21, 3 of the Sunrise Rules.\" It added further that the Respondent \"cannot act as Validation Agent as it cannot act as Registrar.\".\r\n\r\nAlthough not convinced by these contentions, the Panel finally concluded that the content of the email did not decide the outcome of this proceeding.\r\n\r\nInstead it noted that the date of the email of August 3 was issued after the date of the Respondent's decision rejecting the application, that is June 28, 2006. Thus even if the Respondent's discretion is absolute, and whether it was or was not duly or actually exercised, the fact is that the decision taken by the Respondent to reject the application was based entirely on the Documentary Evidence originally produced by the Complainant. As contended by the Respondent, and acknowledged by the Complainant, the Documentary Evidence was insufficient to show that the Complainant had Prior Rights to the domain name; thus it followed that the Respondent's decision was properly reached.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}