{
    "case_number": "CAC-ADREU-002863",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is Vola A\/S, Denmark.\r\n\r\nThe Complainant applied for the domain name VOLA on 16 January 2006 during a period (the Sunrise period) of phased registration of domain names of the .eu Top Level Domain before the general registration of .eu domain starts. \r\n\r\nThe validation agent, PriceWaterhouseCoopers, received the documentary evidence on 24 February 2006, which was before the 25 February 2006 deadline. \r\n \r\nThe documentary evidence consisted of Community trade mark certificate registered in the name of I.P. Lund Sanitätsarmatur A\/S, not the Complainant. The documentary evidence also contained two letters from a Danish trade mark attorney. \r\n\r\nDue to the difference in name between the holder of the prior right and the Complainant, the validation agent concluded that both may be different entities and advised the Respondent to reject the Complainant's application. \r\n \r\nTherefore, the Respondent, European Registry for Internet Domains (EURID), rejected the Complainant 's application. \r\n \r\nAgaints this decision the Complainant filed a complaint with the Czech Arbitration Court.",
    "other_legal_proceedings": "The Panel is not aware of other legal proceedings related to the disputed domain name.",
    "discussion_and_findings": "In consideration of the factual background and the Parties contentions, the following legal conclusions must be reached: \r\n \r\nArticle 10 (1) of Commission Regulation (EC) No 874\/2004 of 28 April 2004 laying down public policy rules concerning the implemenation and functions of the .eu Top level Domain and the principles governing registration, (hereafter \"the Regulation\") states that only holders of prior rights which are recognised or established by national or Community law 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\nPursuant to article 14 of the Regulation, \"[a]ll 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. (…) 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 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. (…) The relevant validation agent shall examine whether the applicant that is first in line to be assessed for a domain name and that has submitted the documentary evidence before the deadline has prior rights on the name. If the documentary evidence has not been received in time or if the validation agent finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this. (…) The Registry shall register the domain name, on the first come first served basis, if it finds that the applicant has demonstrated a prior right in accordance with the procedure (…)\". \r\n \r\nSection 20.3. of the Sunrise Rules 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\nSection 21 (2) of the Sunrise Rules states that the validation agent shall examine whether an applicant has a prior right to the name exclusively on the basis of a prima facie review of the first set of documentary evidence it has received. \r\n\r\nThe applicant has the burden of providing the evidence needed to support the application. In this case it means the evidence that the applicant and the trademark holder is the same person. The burden of proof is putted on the applicant not on the Respondent. \r\n\r\nThe burden of proof was thus on the Applicant to substatiate that he is the holder of a prior right. \r\n\r\nThe Registry's obligation is to examine whether the applicant holds a prior right to the domain name. The right must be verifiable by presented documentary evidence in time. \r\n \r\nIn the presented case the documentary evidence submitted by the Complainant \r\ndid not demonstrate that the Complainant was the holder of a prior right. \r\n\r\nThere can be no doubt that the name of Complainant and the name of the holder of the prior right are very different. The Complainant trade name is VOLA A\/S whereas the name of the holder of the prior right, as mentioned on the trade mark certificate which was submitted as documentary evidence in time, is I.P. LUND SANITÄTSARMATUR A\/S. This diference cannot be considered minor. The Complainant failed to explain this diference in the trade names in time. \r\n\r\nIf the trade name I.P. LUND SANITÄTSARMATUR A\/S and VOLA PRODUCTION A\/S are the secondary names of the Applicant according to the Danish law, the principal name of the company shall be added in brackets according to this law.The application under only a secondary name without the addition of the principal company name which is not prima facie verifible from the documentary evidence is a defect application.\r\n\r\nAs to as the letters sent by the Danish trade mark attorney, one of them was sent to VOLA PRODUCTIONS A\/S. This letter, such as, has no relevance in this case because it does not state anything about a trade name change or of a secondary name etc.\r\n \r\nTherefore the documentary evidence, which was submitted within the phased registration (Sunrise Period), was incomplete and did not clearly demonstrate that the Complainant and the applicant were the same person. \r\n \r\nThe documentary evidence does not clearly indicate the name of the applicant as being the holder of the prior right claimed. \r\n \r\nProving that one is the holder of a trade mark means in this case that the name of the trade mark holder must match with the name of the applicant. \r\n \r\nThe Complainant failed to clearly, prima facie, demonstrate itself as the holder of VOLA trade mark without any doubt. \r\n \r\nThe validation agent examines whether the applicant has a prior right exclusively on the basis of a prima facie review of the documentary evidence received in time. \r\n \r\nThe validation agent or the Respondent is not obliged to engage yourself in a possible speculation or to provide its own enquiry especialiy more in the phased registration. The Respondent and the validation agent were under no obligation to investigate into circumstance of the application.\r\n \r\nAccording to the legal position and duties of the validation agent or the Respondent, the clear identity between the applicant and the trade mark holder must be given in time. \r\n \r\nIn the phased registration (Sunrise Period) there is no reasonable place of a possible speculation about the applicant's identity and the identity of the trade mark holder or about a possible trade mark licence between them or about a possible affiliated company or about a possible principal and secondary names etc. \r\n \r\nThe new evidence brought in the framework of this proceedings by the Complainant has to be disregarded. The applicant is provided with forty days to demonstrate its prior right (Art. 14 of the Regulation). Once the period is over, the Respondent must asses the prior right on basis of the evidence he received in time. \r\n \r\nOnly the documentary evidence which the Respondent was able to examine at the time of validation of the application should be considered by the Panel to asses the legal validity of the Respondent's decision. Documents submitted for the first time during the present ADR proceedings may not be taken into consideration by the Panel. These documents may not serve as a basis to asses whether the Complainant is the holder of a prior right. Accepting these documents as documentary evidence would clearly violate the Regulation and the legal nature of the Sunrise Period such as.\r\n\r\nTherefore, only the documentary evidence which the Respondent was able to examine at the time of validation of the application should be considered by the Panel to asses the validity of the Respondent‘s decission. The assessment of the validity of the Respondent‘s decision has a very specific legal nature and may not in any case serve as a „second chance“ or an additional round providing applicants an advantage to remedy their imperfect original application that was rejected during the Sunrise Period.\r\n \r\nThe Complainant has had a sufficient time to submit an accurate application and all relevant documentary evidence without any mismatch in a trade name or trade names, principal and secondary, and a trade mark. \r\n\r\nRegarding to the legal nature of the phased registration, it is appropriete to emphasize the legal principle of concentration of the documentary evidence during a restricted time and the legal principle vigilantibus iura, too.  \r\n\r\nThe Regulation and the Sunrise Rules give holders of prior rights the opportunity and the great advantage to demonstrate their prior rights during the phased registration, which is an exception to the basic domain name legal principle of first-come first-served. The prior right holder has only conditional right to the registration of domain name which depends on his demonstration of his right by a documentary evidence in time.\r\n\r\nAny right or any additional advantage given to the Complainant to correct his original defective application at this stage of the procedure would be unfair to the other applicants that may filled for the same domain name immediately after the applicant and would clearly be in breach of the Regulation and the Sunrise Rules.\r\n\r\nThe decision taken by the Respondent, European Registry of Internet Domain (EURID), does not conflict with the Comission Regulation (EC) No 874\/2004 of 28 April 2004 laying down public policy rules concerning the implemenation and functions of the .eu Top level Domain and the principles governing registration or with the Regulation (EC) No 733\/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the .eu Top Level Domain.",
    "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": "2006-11-18 00:00:00",
    "informal_english_translation": "1. If the Complainant’s trade name is VOLA A\/S, whereas the name of the holder of the prior right, as mentioned on the trade mark certificate which was submitted as documentary evidence, is I.P. LUND SANITÄTSARMATUR A\/S, the documentary evidence did not demonstrate that the Complainant was the holder of a prior right. This difference cannot be considered minor. \r\n\r\n2. If the trade name I.P. LUND SANITÄTSARMATUR A\/S and VOLA PRODUCTION A\/S are the secondary names according to the Danish law, the principal name of the company shall be added in brackets according to this law.The application under only a secondary name without the addition of the principal company name which is not prima facie verifible from the documentary evidence is a defect application.\r\n\r\n3. It must be prima facie verifiable from the documentary evidence presented in time that the applicant for a domain name is the holder of the trade mark to the name.\r\n\r\n4. The relevant question within the Sunrise Period is thus not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that he is the holder of a prior right.\r\n\r\n5. The Comission Regulation (EC) No 874\/2004 of 28 April 2004 laying down public policy rules concerning the implemenation and functions of the .eu Top level Domain and the principles governing registration and the Sunrise Rules give holders of prior rights the opportunity and the great advantage to demonstrate their prior rights during the phased registration, which is an exception to the basic domain name legal principle of first-come first-served. The prior right holder has only conditional right to the registration of domain name which depends on his demonstration of his right by a documentary evidence in time.\r\n\r\n6. Regarding to the legal nature of the phased registration (Sunrise Period), it is appropriete to emphasize the legal principle of concentration of the documentary evidence during a restricted time and the legal principle vigilantibus iura, too. \r\n \r\n7. No additional documents and new information should be accepted after the 40 day period for the submission of documentary evidence.\r\n\r\n8. Any right or any additional advantage given to the Complainant to correct his original defective application at this stage of the procedure would be unfair to the other applicants that may filled for the same domain name immediately after the applicant and would clearly be in breach of the Regulation and the Sunrise Rules.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}