{
    "case_number": "CAC-ADREU-002888",
    "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, namely an air carrier Germanwings GmbH. The Respondent is an individual Vassilios Xefteris.\r\n\r\nThe Respondent applied for and registered domain name germanwings.eu on 25 July 2006. The Complainant contacted by email the Respondent’s registrar, which directed the correspondence to the Respondent. Upon learning the identity of the Respondent, the Complainant contacted the Respondent directly, stating that the Complainant was the owner of legal rights to the brand Germanwings and asking the transfer of the disputed domain name to the Complainant. The Respondent replied, objecting the “threatening tone” of the received demand and stating that “should you be very interested in this domain name, I am open and available to discuss the “possibilities” for transferring the domain name to you”.\r\n\r\nThe Complainant, through its representative, sent a cease and desist letter to the Respondent on 8 August 2006, stating that the Complainant was the owner of a German trademark GERMANWINGS and that the Respondent’s actions violated several provisions of German trademark law and Act Against Unfair Competition. The Complainant also claimed that the Respondent had registered the domain name germanwings.eu in bad faith and demanded that that the domain was to be transferred to the Complainant. The Respondent sent a reply via email, stating that he would review the matter.\r\n\r\nOn 24 August 2006 the Complainant filed an interim injunction against the German civil court in Munich. The injunction was awarded, according to the Complainant, the next day. According to the Complainant, the transfer of the domain could not be claimed with the interim injunction. Thus, the Complainant started an ADR action against the Respondent.",
    "other_legal_proceedings": "On 24 August 2006 the Complainant filed an interim injunction against the Respondent in a German civil court in Munich. The injunction was awarded, according to the Complainant, the next day. According to the Complainant, the transfer of the domain name could not be claimed in that process.",
    "discussion_and_findings": "As a preliminary matter, the panel is not in a position to give advice regarding the possibility of obtaining legal aid for these proceedings.\r\n\r\nFirst, the panel has to decide the effect of other legal proceedings to this case. The situation is governed by the ADR Rules, which provide in Paragraph A(4)(c) that the “the Panel shall terminate the ADR Proceeding if it becomes aware that that the dispute that is subject of the Complaint has been finally decided by a court of competent jurisdiction or an alternative dispute resolution body” (emphasis added). Otherwise, it is provided in Paragraph A5 of the ADR Rules, that “the conduct of the ADR Proceeding shall not be prejudiced by any court proceeding, subject to Paragraph A(4)(c) above”.\r\n\r\nThe Complainant has provided information that the object of the legal proceedings in Germany is to get an interim injunction preventing the Respondent to transfer or otherwise dispose of the domain name in question. The court cannot order the transfer of the domain name. On the contrary, the subject matter of this ADR proceeding is to decide whether or not to transfer the domain name to the Complainant. The subject matter of this dispute has not, and will not be decided by the court in Munich. Therefore, the panel finds that a decision can be rendered in these ADR proceedings.\r\n\r\nThe decision will be rendered taking into account the requirements under Commission Regulation (EC) No 874\/2004 Article 21 and ADR Rules Paragraphs B11(d), B11(e) and B11(f). The Complainant has to prove that the domain name is identical or confusingly similar to a name in respect of which the Complainant has rights under national and\/or Community law, and either one of the following:\r\n\r\na) the domain name has been registered by its holder without rights or legitimate interest in the name; or\r\nb) the domain name has been registered or is being used in bad faith.\r\n\r\nThis is the legal framework that guides the decision-making. The burden of proof is on the Complainant.\r\n\r\n1. Identity and confusing similarity to a protected name\r\n\r\nThe first requirement is that the domain name is identical or confusingly similar to a protected name. The Complainant is the owner of trade name Germanwings GmbH. In deciding the identity or similarity of the signs, the corporate designation (in this case “GmbH”) is not taken into account, as it merely describes the type of an entity concerned. \r\n\r\nGerman Trademark Act protects trade names in section 5 and prohibits unauthorised third party use of a protected name in the course of trade under section 15(2). The Complainant has provided an extract from the trade register. This extract proves that “Germanwings” is a registered trade name. This name is identical to the disputed domain name germanwings.eu.\r\n\r\nThe Complainant has also relied on German trademark no. 30237548 GERMANWINGS. This trademark is registered for Deutsche Lufthansa AG, but the respondent claims to have a licence to use the mark. The Complainant has not provided any evidence as to the existence of such a licence. It has drawn the panel’s attention to the fact that the Complainant is a company fully owned by a German company called Eurowings Luftverkehrs AG, in which Deutsche Lufthansa AG has a holding of 49 %. This fact might indicate that there is indeed such a licence. However, the panel cannot make that finding without any evidence. It would be untenable to assume that due to a corporate link between Deutsche Lufthansa AG, Eurowings Luftverkehrs AG, and Germanwings GmbH that there exists a trademark licence between them. It is for the Complainant to prove the existence of such a licence, and in the absence of any evidence to the contrary the panel must rule against the Complainant. The existence of the licence could have been demonstrated in many different ways. Regardless of the method, the existence of such a licence must be positively proved. In the present case the Complainant has not proved that it is the licensee of Deutsche Lufthansa AG.\r\n\r\nThe panel finds nevertheless that the Complainant is the owner of trade name Germanwings GmbH and that the disputed domain name is identical to this protected name. Accordingly, the Complainant has satisfied the first requirement.\r\n\r\n2. Lack of rights or legitimate interests in the name\r\n\r\nThe Complaint has asserted that the Respondent does not have rights or legitimate interest in the name. Again, the burden of proof is on the Complainant. However, as recognised in various previous ADR decisions, proving a negative is impossible. To shift the burden of proof the Complainant has to put forward a prima facie case that the Respondent does not have rights or legitimate interest (see for example ADR decisions 982 and 1250).\r\n\r\nThe Complainant has asserted that the Respondent does not have a trademark or a trade name that would justify the registering of domain name “germanwings.eu”. This assertion has not been denied by the Respondent. Despite submitting a substantial response to the Complaint, the Respondent did not provide any evidence or reasoning as to why he would have a legitimate interest to have the disputed domain name. Neither does Respondent’s correspondence with the Complainant put forward any arguments regarding the Respondent’s rights or legitimate interest in the disputed domain name. Commission Regulation (EC) 874\/2004 provides in Article 21(2) a non-exhaustive list that illustrates how the existence of legitimate interests might be demonstrated. These include, inter alia, situations where the domain name holder is commonly known by the name corresponding to the domain name, and where the domain name holder is making legitimate non-commercial fair use of the domain name without intending to mislead the consumers. As the list is merely illustrative, various other arguments could have been put forward. Because no reasons to this effect was put forward by the Respondent, the panel must conclude that the domain name “germanwings.eu” was registered without rights or legitimate interest. The Complainant put forward a prima facie case that was not rebutted by the Respondent.\r\n\r\nThe Respondent’s submission that the Complainant should have registered the disputed domain name during the Sunrise period must be rejected as having no basis in law. The Complainant did not forfeit its right to the disputed domain name by failing to apply it during the Sunrise period.\r\n\r\nAccordingly, the panel finds that the Respondent did not have rights or legitimate interest in the disputed domain name.\r\n\r\n3. Bad faith\r\n\r\nSince the Complainant has proved that the disputed domain name is identical to the Complainant’s trade name, and that the Respondent did not have rights or legitimate interest in the domain name, it is not be necessary to examine whether the domain name was registered or used in bad faith.",
    "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 domain name GERMANWINGS be transferred to the Complainant.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2006-10-23 00:00:00",
    "informal_english_translation": "The Complainant claimed that it is the owner of trade name Germanwings GmbH and a licensee of German trademark GERMANWINGS. The panel found on the evidence that the Complainant is the owner of German trade name Germanwings GmbH, but had failed to prove that it is the licensee of the said trademark. The disputed domain name germanwings.eu was found to be identical to the protected name of the Complainant.\r\n\r\nThe Complainant established a prima facie case that the Respondent did not have rights or legitimate interests in the domain name and the Respondent failed to rebut this allegation. Therefore, the panel concluded that the domain name was registered without rights or legitimate interests. Accordingly, there was no need to consider the issue of bad faith.\r\n\r\nFor these reasons, the panel ordered the domain name to be transferred to the Complainant.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}