{
    "case_number": "CAC-ADREU-003361",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Respondent rejected the application by DEON IURETIGH for the domain names mor and morcosmetics. \r\nThe Applicant claimed a prior right in the form of an unregistered trademark protected in the United Kindgom. \r\nThe validation agent concluded from the documentary evidence submitted by the Applicant that the Applicant did not demonstrate that he was the holder of the claimed prior rights.  \r\nThe Complainant claims that he is the holder of the Community trademark “MOR” (Nr 003287381).  The Complainant requests the Panel to annul the Respondent's decision and to attribute the domain names MOR and MORCOSMETICS to the Complainant.",
    "other_legal_proceedings": "No legal proceedings have been issued or terminated in connection with the disputed domain name.",
    "discussion_and_findings": "A.\r\nMOR COSMETICS, MR. DEON IURETIGH - the Applicant - applied for the domain names MOR and MORCOSMETICS on 7 February 2006. \r\nThe Panel finds that the name of the Applicant consists of two different parts,  MOR COSMETICS, which is the Australian company - MOR Cosmetics  Pty Ltd and from the name of the individual - MR. DEON IURETIGH.\r\nBecause of the inexplicit designation of the Applicant the Panel had to clarify beforehand - following the Article 12 Reg 874\/2004 and Sec 3 (1) (i) of the Sunrise Rules - who is the Applicant in this case. \r\nIn particular, section 3 (1) i of the Sunrise Rules states that: \"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 the Applicant\". \r\nSection 2.3 of the .eu Domain Name WHOIS Policy, entitled Identifying Natural Persons and Legal Persons, repeats the same rule: \" If the 'Company' field is completed, it is assumed that the company is the Registrant\".  \r\nThe general rule is that the individual requesting the registration is considered the applicant. Only if the individual requesting the registration specifies a company in the application form, the actual applicant will be the company and the natural person will only be considered as the contact person within the company.\r\nBy the WHOIS database, it was clearly established and the Panel find that in the present case, the individual requesting the registration of the domain names - DEON IURETIGH -  decided not to fill out the company field and so clearly intended to apply in his own name.\r\n\r\nTo this regard the Panel finds that the Applicant is an individual DEON IURETIGH.\r\n\r\nSimilarly was decided in ADR 810 (AHOLD), in ADR 2268 (EBSOFT), in ADR 2350 (PUBLICARE), in ADR 551 (VIVENDI), 1232 (MCE), 1699 (FRISIA), 1625 (TELEDRIVE), 294 (COLT), 2075 (E-MOTION), 1627 (PLANETINTERNET), 1614 (TELENET), 2124 (EXPOSIUM), 1242 (APONET), ADR 2881 (MRLODGE), and 1299 (4CE). \r\n\r\nB. \r\nBecause 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 the period of phased registration (Article 10 (1) of the Regulation) the Panel had to examine whether the Applicant showed evidence of such a prior right. \r\n\t\r\nThe Complainant insists that  MOR Cosmetics holds the registered trademark No.003287381 for the MOR mark in the European Community and therefore domain names mor.eu and morcosmetics.eu should have been granted from EURid.\r\nBy the WHOIS database, it was established, that the Applicant claimed a prior right in the form of an unregistered trademark protected in the United Kingdom. \r\n\r\nThe Panel finds that the validation agent received the documentary evidence on 14 March 2006, which was before the 19 March 2006 deadline. \r\n\r\nThe submitted documentary evidence for the two applications was identical and consisted of: \r\n\r\n- an affidavit signed by Gary Richard Allwood (an attorney from Australia), stating that he represents MOR Cosmetics Pty Ltd and that he is aware that MOR has an application pending for the registration of a trademark pursuant to the intellectual property laws governing and applicable in the European Union;\r\n- a printout from the OHIM database showing that the Community trademark “MOR” (Nr 003287381) has been registered on 12 August 2005 to the Australian company MOR Cosmetics Pty Ltd; and \r\n- a certificate of registration and an abstract from the Australian business register showing that the company MOR Cosmetics Pty Ltd is registered as an Australian company (Nr 096 765 481). \r\n\r\nTo this regard the Panel finds that the name of the Applicant is different from the name of the company mentioned in the documentary evidence. \r\n\r\nIt is absolutely clear that the Complainant bears burden of proof and if it is holder of a prior right or not.\r\nThe documentary evidence submitted by the Applicant did not demonstrate the claimed prior rights. \r\nThe submitted documentary evidence for the two applications does not even mentioned the name of the Applicant - DEON IURETIGH – as a holder of prior rights which are recognised or established by national or Community law (pursuant to Articles 10 (1) and 14 of the Regulation). \r\nThe Applicant did not submit any 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 (pursuant to Section 20.3. of the Sunrise Rules).\r\nThe Complainant did not show either an affidavit signed by a competent authority or a relevant final judgement by a court or an arbitration stating that the unregistered trade mark meets the conditions provided for in the law of the United Kingdom (pursuant to Section 12.3 of the Sunrise Rules). As far as unregistered trademarks protected in the United Kingdom are concerned, Annex 1 to the Sunrise Rules states that trade names may serve as prior rights \"only to the extent that rights in passing off exist\" and requires documentary evidence as referred to in Section 12(3) of the Sunrise Rules.\r\nThe validation agent could not pursuant Anex 1 to Sunrise Rules validate the existence of a protected prior right on the basis of prima facie review of the documentation (pursuant to Sections 12(3)(i), 21(2)of the Sunrise Rules)\r\nThe validation agent concluded from the submitted documentary evidence that the Applicant did not demonstrate that it was the holder of the claimed prior rights.  \r\n\r\nThe burden of proof was thus on the Applicant to substantiate that he is the holder of a prior right recognised or established by national or Community law (see for example decisions in ADR 127 (BPW), 219 (ISL), 294 (COLT), 551 (VIVENDI), 984 (ISABELLA), 843 (STARFISH), 1931 (DIEHL, DIEHLCONTROLS), 2350 (PUBLICARE), 2881 (MRLODGE), etc.). \r\n\r\n\r\nThe Panel is of the opinion that the Complainant failed to meet its burden of proof to establish the claimed prior rights pursuant to the Regulation and Sunrise Rules and his complaint has to be rejected. \r\n\r\nC.\r\nFurther - if the Complainant contended the attribution of the domain names to the Complainant - the Panel points out regardless of the above mentioned valid reasons for the rejection of the complaint that the Complainant – the company MOR Cosmetics Pty Ltd - \r\nis not the next applicant in the line for the domain names (Section 27 (1) and Section B.11 (c) of the ADR Rules). Moreover the Complainant is registered as an Australian company and there is no evidence showing that the Complainant has its principal place of business within the European community. The Complainant does not meet conditions pursuant to the Article 4 (2) (b) of the Regulation EC 733\/2002. The Complainant is therefore not eligible to apply for. EU domain names (pursuant to Article 14 of the Regulation and section 12.3).",
    "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": "2007-02-07 00:00:00",
    "informal_english_translation": "MOR C1SMETICS, MR. DEON IURETIGH - the Applicant - applied for the domain names MOR and MORCOSMETICS on 7 February 2006. Mor Cosmetics is the Australian company mentioned in the documentary evidence. MR. DEON IURETIGH is an individual – natural person. \r\nBecause the general rule is that the individual requesting the registration is considered the applicant, MR. DEON IURETIGH  (hereafter “the Applicant”) claimed a prior right in the form of an unregistered trademark protected in the United Kindgom. \r\nBy the WHOIS database, it was clearly established and the Panel find that in the present case, the individual requesting the registration of the domain names - DEON IURETIGH - decided not to fill out the company field and so clearly intended to apply in his own name.\r\nThe validation agent received the documentary evidence on 14 March 2006, which was before the 19 March 2006 deadline. \r\nThe documentary evidence for the two applications is identical and consisted of: \r\nan affidavit signed by Gary Richard Allwood (an attorney from Australia), stating that it represents MOR Cosmetics Pty Ltd and that he is aware that MOR has an application pending for the registration of a trademark pursuant to the intellectual property laws governing and applicable in the European Union ; \r\na printout from the OHIM database showing that the Community trademark “MOR” (Nr 003287381) has been registered on 12 August 2005 to the Australian company MOR Cosmetics Pty Ltd; and \r\na certificate of registration and an abstract from the Australian business register showing that the company MOR Cosmetics Pty Ltd is registered as an Australian company (Nr 096 765 481).  \r\nThe validation agent concluded from the documentary evidence that the Applicant did not demonstrate that he was the holder of the claimed prior rights. \r\n \r\nTherefore, the Respondent rejected the Applicant's application in compliance with the Regulation and Sunrise Rules and the Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}