{
    "case_number": "CAC-ADREU-003400",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant filed applications for registrations (the “Applications”) of the .eu domain names: sexandsubmission.eu (20\/9\/2006), fuckingmachines.eu (27\/9\/2006),  devicebondage.eu (29\/9\/2006), free-hardcore.eu (27\/9\/2006), kinkcinema.eu (20\/9\/2006), kinkgirls.eu (20\/9\/2006), latexbondage.eu (29\/9\/2006), wiredpenis.eu (12\/9\/2006), (the “Domain Names”).\r\n\r\nThe Applications included extracts from the trade name database of the Dutch Chamber of Commerce.\r\n\r\nThe Respondent rejected the Applications (the “Decision”) because the documentary evidence provided by the Complainant was considered insufficient to establish the prior right of the applicant to the Domain Names within the meaning of Article 10(1) of the .eu Sunrise Rules (the “Sunrise Rules”).\r\n\r\nOn 21 November 2006, the Complainant filed this Complaint against the Decision seeking an annulment of the Decision and requesting that the Domain Names must be granted to the Complainant.   These proceedings were formally commenced on 9 January 2007.",
    "other_legal_proceedings": "NONE",
    "discussion_and_findings": "The principal issues in this Complaint are as follows:\r\n\r\n(a)\tThe Complainant made an error in the application process for the Domain Names in that it failed to correctly insert the name of the holder of the prior rights in the correct field in the application form.  Instead, it inserted the contact name at the organisation as the applicant.  Such individual, Mr Peter Acworth, did not on the face of the documents provided have any apparent prior rights to the Domain Names.  \r\n\r\n(b)\tThe information provided at the time the application for registration was submitted did not include all the documents that were submitted to the Panel in this Complaint.  The documents that were submitted namely the Dutch Chamber of Commerce database entries demonstrated that the company CNE Data International B.V. had registered the names that corresponded to the Domain Names at the Dutch Chamber of Commerce.  The Complainant contends that this is sufficient to establish a prior right whereas the Respondent contends that under Dutch law registration at the Dutch Chamber of Commerce alone is not sufficient to establish such prior right.  \r\n\r\nThe Panel has considered both these issues in turn:\r\n\r\n(a)\tArticle 14 of the Regulation is clear in that the applicant for a domain name during the Sunrise Registration Period is required to submit “documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question”.  The question therefore to be decided is to what extent the validation agent was under a duty to investigate why such an apparent discrepancy existed and to what extent it was obliged to check whether the documents submitted were correct.  The Complainant indicates that a simple internet check would have revealed that the holder of the prior right was the Complainant.  However, the Respondent contends that the burden of proof is upon the applicant to demonstrate that it is the holder of the prior right and that it is not the duty of the validation agent to speculate as to the identity of the correct applicant.  Further, these proceedings should not serve as a second chance or an additional round providing an option to remedy an imperfect original application that was rejected during the Sunrise Registration Period.\r\nUnder Section 21(1) of the Sunrise Rules the validation agent and the registry are not obliged to notify the Complainant where the requirements for proving the existence of the prior right to the name have not been complied with.  In the circumstances, the Panel finds that the validation agent was under no duty to request further documentation from the applicant or to speculate as to the correct identity of the applicant.  It was therefore reasonable for the validation agent to conclude that the documentary evidence supplied by the applicant did not establish a prior right under the Regulation or Sunrise Rules.  As such the validation agent was under no obligation to investigate the correct identity of the owner of the prior right.\r\n\r\n(b)\tGiven the conclusion reached in paragraph (a) above it is not necessary for the Panel to consider whether the documentation provided by the applicant was sufficient to establish a prior right under the Sunrise Rules.  However, since the issue has been raised and been the subject of argument in these proceedings, the Panel will consider the issue.  Firstly, the Panel notes that the Domain Names in question are in some respects sexually explicit words and phrases.  A considerable body of law has developed in the United Kingdom regarding the extent to which rights can be conferred on marks of this type.  It is, however, accepted that certain jurisdictions may adopt a more relaxed attitude to such issues.  The Panel is, however obliged to consider the evidence, and only the evidence submitted at the time of the application for the Domain Names.  In this case the only evidence that was supplied was the evidence of registration of such names at the Dutch Chamber of Commerce.  It is the Panel’s view that this documentation alone does not provide sufficient evidence of the existence of an unregistered prior right in the Domain Names as claimed by the Complainant.  The mere registration of such names does not demonstrate use in itself nor does it demonstrate that there is any trading goodwill in such names.  Such evidence is admissible in order to help make out a case that there is use of the names or existence of trading goodwill, however, more information is required in order to make out that case.  In these circumstances, notwithstanding the discrepancy between the identity of applicant and Complainant, the Panel considers that the Complainant is not entitled to the registration of the Domain Names in accordance with the Sunrise Procedure.",
    "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": "2007-02-07 00:00:00",
    "informal_english_translation": "The Complainant applied during the Sunrise Registration Period for the Domain Names on sexandsubmission.eu (20\/9\/2006), fuckingmachines.eu (27\/9\/2006),  devicebondage.eu (29\/9\/2006), free-hardcore.eu (27\/9\/2006), kinkcinema.eu (20\/9\/2006), kinkgirls.eu (20\/9\/2006), latexbondage.eu (29\/9\/2006), wiredpenis.eu (12\/9\/2006), (the “Domain Names”).  The Applications were rejected due to the fact that the documentary evidence provided by the Complainant was considered insufficient to establish a prior right namely:\r\n\r\n(a)\tthe name of the Applicant was different from the evidence provided of the holder of the prior right; and\r\n\r\n(b)\tthe evidence of the prior right was not sufficient to demonstrate that such a prior right existed.  The Complainant submitted with its Complaint new documents demonstrating that it had the prior rights.  These documents did not form part of the original documentary evidence submitted during the Sunrise Period.\r\n\r\nThe Panel rules as follows:-\r\nThe Complainant failed to demonstrate that it was a holder of the prior right because it did not submit documents proving that it was the owner of the prior right and it was required to do so under Section 13 of the Sunrise Rules.  It was therefore, not entitled to take advantage of the Sunrise Registration procedure.  The Complainant submitted that the validation agent was under a duty to request further documents from the Complainant or investigate the reasons why the documentary evidence was efficient.  However, the Panel found that under Section 21(1) of the Sunrise Rules the validation agent and the Registry are not obliged to notify the Complainant where the requirements for proving the existence of the prior right to the name have not been complied with.\r\nIn the circumstances, the Panel dismisses the Complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}