{
    "case_number": "CAC-ADREU-003042",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant requests the transfer of the domain name <wewalka>, although the application form for the disputed domain states “Peter Klatik” in the name field and “Null” in the organisation field. The Complainant did not formally apply for the phased registration period.\r\nThe application was received by the Respondent on February 7th, 2006; the deadline for the submission of documentary evidence was March 19th, 2006.\r\nEurope Registry, Mr. John Preston, is mentioned as technical contact of the application (Registrar). \r\nOn February 9th and 17th, 2006, Mr. Peter Klatik sent an email to its technical contact requesting a change of the applicant Peter Klatik, Null, Boehler 207, 2601 Sollenau, Oesterreich into Wewalka GmbH Nfg KG Boehler 207, 2601 Sollenau, Oesterreich.\r\nOn August 3rd, 2006 the application was rejected by the Respondent, because the documentary evidence submitted did not sufficiently prove the right claimed.",
    "other_legal_proceedings": "Nihil",
    "discussion_and_findings": "1. Legal Framework\r\nThe Panel wants to stress the following legal aspects: \r\n\r\n1.1 Following the European Council Meeting in Lisbon on March 23rd and 24th, 2000, the creation of the .eu Top Level Domain was one of the targets to accelerate electronic commerce in the e-Europe initiative. The Regulation (EC) No 733\/2002 on the implementation of the .eu Top Level Domain and the Regulation (EC) No 874\/2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration set up the framework on this aspect. \r\n\r\n1.2 Art 5 (3) Reg 733\/2002 and Art 12 Reg 874\/2004 set out principles for the phased registration. Following these principles the Registry shall publish a detailed description of all the technical and administrative measures that it shall use to ensure a proper, fair and technically sound administration of the phased registration period. The Sunrise Rules give this detailed description – especially Sec 3 (1) specifies for instance that if the name of the company or the organisation is specified when applying for registration in the phased period, then the company or organisation is considered as applicant, if no organisation\/company is specified, than the individual requesting for registration is considered as applicant. It is the Panels view, that this rule is within the scope of the EC-Regulations to ensure proper, fair and a sound technical administration of the registration procedure for the registration of a domain name in the phased period.\r\n\r\n1.3 Art 22 (1) (b) Reg 874\/2004 states, that an ADR procedure may be initiated by any party where a decision taken by the Registry conflicts with this Regulation or Reg 733\/2002. Hence, a violation against the Sunrise Rules per se, is not sufficient to make out a successful case against the Registry [see for example Cases 1047 (festool.eu), 1071 (essence.eu), 1310 (astrodata.eu), 1481 (wisdom.eu), 1539 (setra.eu), 1674 (ebags.eu), 2145 (cvc.eu) and 2362 (petit-forestier.eu)].\r\n\r\n1.4 Following Art 10 (1) Reg 874\/2004 holders of prior rights shall be eligible to domain names during a period of phased registration before general registration of .eu domain starts. Art 10 (2) Reg 874\/2004 stresses the point that the registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists.\r\n\r\n1.5 Art 14 Reg 874\/2004 states, that all claims for prior rights under Art 10 (1) and (2) must be verifiable by documentary evidence that he or she is the holder of the prior right claimed. This evidence, moreover, shall be submitted to a validation agent indicated by the registry in such a way that it shall be received by the validation agent within forty days from the submission of the application. If the documentary evidence has not been received by this deadline, the application for the domain name shall be rejected.\r\n\r\n1.6 Art 13 Reg 874\/2004 defines validation agents as legal persons established within the territory of the Community with appropriate expertise. Art 14 Reg 874\/2004 moreover sets out, that the validation agent shall examine whether the applicant that is first in line to be assessed has submitted the documentary evidence before 40 days after submission of the application. 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. Following Recital 12 Reg 874\/2004 the validation agent should assess the right which is claimed for a particular name on the basis of evidence provided by the applicants.\r\n\r\n1.7 Art 4 (2) (d) and Art 5 Reg 733\/2002 as well as Art 22 Reg 874\/2004 oblige the registry to implement an extra-judicial settlement of conflicts policy. The .eu Alternative Dispute Resolution Rules (ADR Rules) stresses the point (page 2), that the interpretation and application of the ADR-Rules will be done in the light of the EU legal framework which will prevail in case of conflict. Under Sec 11 (c) ADR Rules it is stated, that the main remedy where the Respondent is the Registry shall be the annulment of the disputed decision taken by the Registry. However, the Panel may decide in appropriate cases that the domain name in question related to the phased period shall be transferred, revoked or attributed but only if the Complainant is the next applicant in the queue for the domain name concerned.\r\n\r\n1.8 It is a general principle set out by the EC-Regulations (esp Recital 11 Reg 874\/2004), that the principle of first-come-first-served should be the basis for resolving a dispute between holders of prior rights during the phased registration. \r\n\r\n2. Panel ruling \r\n2.1 This Panel wants to stress the point, that following Art 22 (11) Reg 874\/2004 the ADR Panel shall decide whether the decision at hand taken by the Registry conflicts with Reg 733\/2002 or Reg 874\/2004. ADR Decisions grounded merely on the Sunrise Rules are outside the Panels jurisdiction. The relevant rules for scrutinizing the Registry decisions are therefore the above cited EC-Regulations. \r\n\r\n2.2 It is the Panels view, that for showing prior rights, the applicant has to submit documentary evidence to show that he is the holder of the prior right claimed on the name in question within forty days from the submission of the application to the indicated validation agent. Although the applicant is allowed to submit additional evidence, this only is true, if the additional evidence will be submitted within the forty day period since the submission of the application. This view is also supported by the first-come-first-served principle as well as the fact, that the registration shall be fair, non-discriminatory and transparent.\r\nUnder Art 10 (2) Reg 874\/2004 it is also stated that the registration shall consist of the complete name for which the prior right exists, as written in the documentation. \r\n\r\n2.3 From the wording of Art 10 and 14 Reg 874\/2004 it is clear, that the evidence that shows the prior right claimed must be a documentary evidence and must show that the applicant is the holder of the prior right claimed on the name in question. With regard to Art 13 Reg 874\/2004 the validation agent has to have appropriate expertise. However, he shall examine applications in the order in which the application was received at the Registry and with regard to the submitted documentary evidences. It is moreover in the validation agents sole discretion (Art 21 (3) Sunrise Rules) to do further investigation. It is however the Panels view that with respect to the fact that the validation agent shall have appropriate expertise it has also the duty to examine the application and the supported documents materially. This duty only goes to the extend, that it shall verify\/conform obvious errors between the application and the documentary evidence (e.g. the applicant indicated the wrong right or country at the cover letter – iura novit curia); but this shall not amount to verifying\/confirming a difference in legal forms regarding the applicant and the evidence documentation - that would be against Art 10 and 14 Reg 874\/2004 and the principle first-come-first-served. \r\n\r\n2.4 Following Art 12 Reg 874\/2004 the Registry has to publish a detailed description of all the technical and administrative measures that it shall use for ensuring a fair, transparent and technical sound administration of the phased registration period. This description is laid down in the Sunrise Rules – for ensuring these principles the Sunrise Rules, inter alia, state in Sec 3 (1) (i) that the Registry shall be provided with the full name of the applicant; where no name of a company or organisation is specified, the individual requesting registration of the Domain Name is considered the applicant; if the name of the company or the organisation is specified, then the company or organisation is considered as the applicant. This approach also is taken by national registries to facilitate the registration process and is not only coherent with the Sunrise Rules but also intended by the relevant EC-Regulations. \r\nIn the case at hand, Mr. Peter Klatik was stated in the application field and did not refer to the name of the holder of the „Wewalka“ mark in the “organisation” field of the application form – on the contrary: He even insert in the „organisation“ field „Null“ which even intensifies the pretended intention of Mr. Peter Klatik being the Applicant. \r\nThe Registry therefore considered Mr. Klatik as applicant with the consequence of bearing the burden of proof showing that he is the holder or licensee of a prior right.\r\n\r\n2.5 Finally the Panel wants to stress the point, that (on the contrary to the Complainants contentions) Mr. Peter Klatik sent the emails from February 9th and 17th, 2006 to his Registrar and not to the Respondent. Without prejudice and independent on the fact whether the Registrar could have corrected the mistake made by Mr. Klatik or not, Sunrise Rules, Section 5(3) make it clear that the Respondent is not a party to the agreement between an Applicant and its Registrar, and that the Respondent does not incur any liability.\r\n\r\n2.6 Following Rec 11 Reg 874\/2004 (fist-come-first served) and Sec 11 (c) ADR Rules that a transfer-decision against the Registry only is available with regard to Complainants, who are the next applicant in the queue for the domain name, the requested remedy (“transfer” to Wewalka GmbH Nfg KG, Anton Gsellmann) at the case in hand is not lawful. \r\nIf the Panel would accept this remedy, it would not only act against the general Regulations principle “first-come-first-served” but also Art 22 (11) Reg 874\/2004 would be disrupted, because Wewalka GmbH Nfg KG, Anton Gsellmann does not fulfil the general eligibility criteria set out in Art 4 (2) (b) Reg 733\/2002. Wewalka GmbH Nfg KG, Anton Gsellmann did not even apply for the domain name at issue. \r\n\r\n3. For all the above mentioned reasons, the complaint is not justified.",
    "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": "2006-12-08 00:00:00",
    "informal_english_translation": "For challenging a decision taken by the Registry the decision has to conflict with the EC-Regulations 733\/2002 or 874\/2004; violations against the Sunrise Rules per se are not sufficient. \r\nThe cited EC-Regulations moreover set out the principle \"first-come-first-served\" as well as the fact that the registration shall be fair, non-discriminatory and transparent. The applicant therefore has to submit documentary evidence to show that he is the holder of the prior rights claimed within 40 days since the submission of the application. Additional evidence after the 40 days shall not be taken into consideration. \r\nThe validation agent has to have appropriate expertise; he therefore has the duty to examine the application and the supported documents materially, but only to the extend that he shall verify\/conform obvious errors between the application and the documentary evidence. Further investigations are in his sole discretion, but always within the scope of the principles set out in the EC-Regulation especially the \"first-come-first-served-principle\". \r\nA transfer-decision against the Registry only is available to whom is the next applicant in the queue for the domain name and fulfils the general eligibility criteria set out in Art 4 (2) (b) Reg 733\/2002. \r\nThe Registry may not be held responsible or liable for mistakes or negligence made by Registrars.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}