{
    "case_number": "CAC-ADREU-003285",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7\/2\/2006, the Complainant unsuccessfully applied for the domain name GIEBEL in Sunrise I period. The Application expired.\r\n\r\nOn 25\/3\/2006, the Complainant applied again for the same domain name GIEBEL in Sunrise II period. The Complainant based the second Application on a Prior Right arising of its company name “Giebel Rechtsbesorgungs-GmbH.“ This second Application was rejected by the Respondent. The rejection was later reasoned by insufficient demonstration of Prior Rights.\r\n\r\nThe Complainant seeks annulment of the decision rejecting its second Application and attribution of the domain name GIEBEL to the Complainant. In eventum, the Complainant seeks transfer (attribution) of the domain name GIEBEL without annulment of the Respondent’s decision.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings involving the disputed domain name.",
    "discussion_and_findings": "As the evidence presented by Parties is not disputable, the Panel can base its decision on following facts:\r\n\r\n-\tThe disputed Application for domain name GIEBEL was filed on 25\/3\/2006. The application was submitted by GRG Giebel Rechtsbesorgungs- GmbH. Later, the Complainant submitted Documentary Evidence containing following documents: copy of concession\/documentary approval (Erlaubnisurkunde) issued in favour of Mr. Dierk Giebel, copies of documents from the Company Register in Bremen, file no. B HRB 23017 HB for the company Giebel Rechtsbesorgungs- GmbH and copy of Query Result from WHOIS database on domain name GIEBEL.BIZ\r\n-\tThe Application was rejected by the Respondent due to insufficient demonstration of Prior Rights in terms of Article 10 and Article 14 of the Regulation.\r\n\r\nAs can be seen from both excellent submissions of the Parties, the dispute arose between them due to their different legal opinion on the question whether requirements laid down in Article 10 and Article 14 of the Regulation and subsequently in Sunrise Rules were fulfilled by the Complainant in his second Application for the domain name GIEBEL. Consequently to remedies sued by the Complainant and to presented arguments, the Panel has to decide whether there existed Prior Rights of the Complainant at the moment of filing the Application (Article 10 of the Regulation), whether these rights were sufficiently demonstrated to the Respondent (Article 14 of the Regulation) and\/or whether there are grounds to transfer (attribute) the domain name to the Complainant even without annulment of the Respondent’s decision.\r\n\r\nThe Panel agrees with arguments of the Complainant regarding the possibility of protection of distinctive parts of company names by the German law. Such protection, however, is neither purely absolute, nor formally implied by the law, as it is always necessary to factually prove that the disputable indication is relatively distinctive.\r\n\r\nThe protection of distinctive part of a company name is not absolute and exclusive, as it is possible for more corporate units to use at the same time the same distinctive part together with different indicator (there are, for instance, companies legally using the same distinctive part of the company name as Complainant, i.e. “Giebel,” named like “Emil Giebel Spedition-Spezialtransporte GmbH & Co.KG, Giebel Kaltwalzwerk GmbH, Giebel GmbH & Co. KG Industrie- und Verkehrswerbemittel“ and others). As contended by the Complainant, no German national court would dissent from protecting the name “Giebel” in favour of the Complainant. On the other hand, it is unlikely that such protection would be granted against other companies using the same distinctive name with different descriptive element like those named above. Moreover, it is to be noted that there might be different standards of proof in case such priority right is claimed in relative dispute on the national level and as an absolute right on the European level like in case of the disputed Application.\r\n\r\nAlso, as noted by the Complainant, the question of protection of a distinctive part of a company name might in specific cases, namely in case of use of personal names, depend even on curiosity of the respective names. Besides the criteria of frequency of use, the distinctiveness of the name, its legal quality and its protection can be also resulting of the renown of its holder, forms of its use, etc. All these factors and many others might be then important in assessment whether some part of the company name is distinctive enough, whether it receives per se the legal protection and to what extent. Again, it is to be noted that not the protection itself but the standard of proof might differ on the national and European level as European institutions can not be required to be a priori aware of all particular and special elements of national languages, local traditions or cultural backgrounds.\r\n\r\nThe Complainant contends that it is well known German collection and legal services agency. It also contends that the name “Giebel” is not frequent in Germany and that it used it in regular course of business for remarkably long time and became broadly known by it. This should all result to the final conclusion that the name “Giebel” truly is the distinctive part of the company name and receives appropriate protection according to the German law.\r\n\r\nIf above factual contentions and conclusions would be backed by proper evidence, it might  be, in the view of the Panel, even possible to adopt extensive teleological interpretation of Section 19 of the Sunrise Rules and to state that there existed Prior Rights even to a part of the registered company name as suggested by the Complainant. Unfortunately, such evidence has not been brought in front of the Panel. Even more importantly, such evidence was not presented to the Respondent at the time of filing the Application in Sunrise II period and consequently, the Respondent could not discover and validate the existence of Prior Rights under the German law. \r\n\r\nThus, the Panel has to conclude that Prior Rights in terms of Article 10 of the Directive were not properly demonstrated by the Complainant according to Article 14 of the Directive and the disputed decision of the Respondent to reject the Application was correct.\r\n\r\nAs the Complainant only asserted but did not prove existence and relevance of its Prior Rights in front of the Panel, the Panel sees no reason to consider exceptional attribution of the disputed domain name without regards to perfection of prior decision of the Respondent like in Panel decision No. 01325 (KOHLPHARMA). The simple fact that there are no other applicants for the domain name GIEBEL does not seem to the Panel as enough justification for considering such extraordinary measure.",
    "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": "2006-12-24 00:00:00",
    "informal_english_translation": "The Complainant filed the Application for domain name GIEBEL based on company name “Giebel Rechtsbesorgungs-GmbH”. The Respondent rejected the Application due to lack of demonstration of Prior Rights.\r\n\r\nThe Complainant argued that the distinctive part of the company name, “Giebel,” is protected per se by the German law and should have been registered as domain name in Sunrise II period.\r\n\r\nThe Panel held that the Complainant did not bring in his Application sufficient evidence of the fact that the part of the company name “Giebel” is distinctive and is per se protected by the German law. Thus, the Respondent did not have factual grounds to validate existence of Prior Rights in terms of Article 10 of the Directive.\r\n\r\nThe Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}