{
    "case_number": "CAC-ADREU-003310",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On February 7, 2006, the Complainant filed a request for registration of the domain name <medium.eu> in the name of “Medium GmbH”. \r\n\r\nOn February 13, 2006, the Respondent received documentary evidence submitted by the Complainant.\r\n\r\nThe Respondent rejected the request for registration on the grounds that the Complainant did not demonstrate that it was the holder of the prior right to the name MEDIUM.\r\n\r\nThe Complainant filed a Complaint against the Respondent which was received by the Czech Arbitration Court (“CAC”) via e-mail on October 10, 2006 and in hardcopy on October 12, 2006. After the compliance review, CAC declared that the formal date of the commencement of the ADR proceeding was October 23, 2006.\r\n\r\nThe Respondent submitted a Response which was received by CAC on December 7, 2006.\r\n\r\nOn December 11, 2006 CAC appointed José Checa, Dominik Eickemeier and Johan Sjöbeck as panellists.",
    "other_legal_proceedings": "There are no other legal proceedings of which the panel is aware that are pending or decided and that relate to the disputed domain name.",
    "discussion_and_findings": "Article 22 of the Commission Regulation (EC) No 874\/2004 of 28 April 2004 states that in the case of a procedure against the Registry, the ADR panel shall decide whether a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733\/2002 of 22 April 2002 on the implementation of the .eu Top level Domain.\r\n\r\nThe Complainant’s application for the domain name <medium.eu> was rejected by the Respondent with reference to article 10(2) of Regulation (EC) No 733\/2002.\r\n\r\nWith its Complaint, the Complainant has submitted new additional evidence in order to prove that it has used only the name MEDIUM as a business identifier. However, this additional information was not submitted within the 40 day period as prescribed in Article 14 of Commission Regulation (EC) No 874\/2004. Furthermore, Section 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 if documentary evidence it has received. \r\n\r\nTherefore, the panel may solely consider the evidence submitted within the 40 day period when deciding whether the Registry’s decision to reject the Complainant’s application for the domain name <medium.eu> was correct or not.\r\n\r\nThe evidence submitted within the 40 day period on February 13, 2006 indicates that the Complainant’s registered firm is “MEDIUM VERTRIEBSGESELLSCHAFT FÜR AUDIOVISUELLE KOMMUNIKATIONSMITTEL MBH”.\r\n\r\nSection 19(4) of the Sunrise Rules states that “For trade names, company names and business identifiers, the company type (such as, but not limited to, “SA”, “GmbH”, “Ltd.”, or “LLP”) may be omitted from the complete name for which the Prior Right exists.”\r\n\r\nThus, it is acceptable to remove the company type “MBH” from the complete company name upon which the domain name application was based. Without the company type, the company name consists of the words “MEDIUM VERTRIEBSGESELLSCHAFT FÜR AUDIOVISUELLE KOMMUNIKATIONSMITTEL”.\r\n\r\nArticle 10(2) of Commission Regulation (EC) No 874\/2004 states 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\nSection 19(1) of the Sunrise Rules states that “registration of a Domain Name on the basis of a Prior Right consists in the registration of the complete name for which the Prior Right consists, as manifested by the Documentary Evidence. It is not possible for an Applicant to obtain registration of a Domain Name comprising part of the complete name for which the Prior Right exists.”\r\n\r\nFrom Article 14 of Commission Regulation (EC) No 874\/2004 it is clear that the burden of proof regarding a prior right is with the Applicant. It states that every Applicant shall submit documentary evidence that shows that he or she is the holder of a prior right claimed on the name in question. 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 set out in the second, third and fourth paragraphs.\r\n\r\nThat the burden of proof regarding a prior right is with the Applicant is also clear from Section 21(3) of the Sunrise Rules, which states that the validation agent is not obliged, but permitted in its sole discretion, to conduct its own investigations into the circumstances of the application, the prior right claimed and the documentary evidence produced. \r\n\r\nThe purpose of the Commission Regulation (EC) No 874\/2004 is to grant domain names during the Sunrise period on first come first served basis provided that an Applicant can demonstrate a right which makes him entitled to the domain name application. According to paragraph 4 of Article 14 of the said Regulation, every Applicant shall submit documentary evidence that shows that he or she is the holder of the Prior Right claimed in question and if such documentary evidence has not been received within forty days from the domain name application, the application for the domain name shall be rejected.\r\n\r\nDuring the 40 day period, the Complainant did demonstrate that it is the holder of a prior right to the name “MEDIUM VERTRIEBSGESELLSCHAFT FÜR AUDIOVISUELLE KOMMUNIKATIONSMITTEL” but did not demonstrate that it is the holder of a prior right to the name MEDIUM.\r\n\r\nIf there would be exceptions in favour of the Applicant, allowing additional submissions of evidence after the forty day period, it would affect the legitimate expectancy of the next Applicant in the queue for the domain name in question and conflict with the first come first served principle set out in Article 14 of the Commission Regulation (EC) No 874\/2004. In order to ensure a fair and consistent policy of granting domain names, this principle must be applied even in cases where there are no further Applicants in the queue.\r\n\r\nHaving all of the above in mind, the panel finds that the Respondent’s decision to reject the Complainant’s application on the grounds that the submitted documentary evidence did not sufficiently prove the right claimed does not conflict with the European Regulations No 874\/2004 and 733\/2002.",
    "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": "2006-12-20 00:00:00",
    "informal_english_translation": "The Complainant’s application for the domain name <medium.eu> was rejected by the Respondent with reference to article 10(2) of Regulation (EC) No 733\/2002 which states 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\nDuring the phased period, the Complainant submitted documentary evidence substantiating that the Complainant’s company name is “MEDIUM VERTRIEBSGESELLSCHAFT FÜR AUDIOVISUELLE KOMMUNIKATIONSMITTEL MBH”. \r\n\r\nWith its Complaint, the Complainant submitted additional evidence in order to prove that the term “MEDIUM” is used as business identifier by the Complainant. Only evidence submitted within the 40 day period should be considered by the panel to assess the validity of the Respondent’s decision. \r\n\r\nThe panel found that the Complainant did not demonstrate that it was the holder of a prior right to the name MEDIUM and that the decision taken by the Respondent to reject the Complainants domain name application did not conflict with the Commission Regulation (EC) No 874\/2004. Therefore, the Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}