{
    "case_number": "CAC-ADREU-003514",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant, GIE GESAM-VITALE (the Complainant’s representative Cournot Assocition D’Avocats, Breban Yann, has been mistakenly inserted in the Complaint as the Complainant but the Panel has decided to ignore this minor formal error and consider GIE SESAM-VITALE as the true Complainant), has requested annulment of the decision made by the Respondent, EURid, regarding the domain name <netcards.eu>. The Complainant has further requested the disputed domain name to be attributed to the Complainant.\r\n\r\nThe disputed domain name <netcards.eu> was applied by the Complainant during the second phase of the phased registration period, i.e. the Sunrise II period, on 14 March 2006. In the application the Complainant claimed prior right to the name NETC@RDS protected in France. The type of the prior right was marked as “Other” in the application.\r\n\r\nThe Complainant submitted documentary evidence to the validation agent timely within the 40 day deadline given.\r\n\r\nThe Respondent refused the Complainant’s application on grounds that the documentary evidence was not sufficient to prove that the Complainant (i.e. the Applicant) was the holder of the claimed prior right.\r\n\r\nThe Complaint was first filed on 26 October 2006 and upon the request by ADR Centre later filed in English. The formal date of the commencement of the ADR proceedings is 13 November 2006.\r\n\r\nThe Respondent filed a response to the Complaint on 28 November 2006.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings in relation to the disputed domain name <netcards.eu>.",
    "discussion_and_findings": "Article 10 (1) of Commission Regulation (EC) No 874\/2004, of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration, states that 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 a period of phased registration before general registration of .eu domain starts. \r\n \r\nArticle 10 (1) of Commission Regulation (EC) No 874\/2004 further provides that ‘Prior rights’ shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works. \r\n\r\nArticle 14 of the Commission Regulation (EC) 874\/2004 states that the Applicant must submit documentary evidence showing that he or she is the holder of the prior right claimed on the name in question. Based on the Article 14, 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 Article 14.\r\n\r\nSection 21 (2) of the Sunrise Rules states that the validation agent determines exclusively on the basis of a prima facie review of the submitted documentary evidence if the applicant has a valid prior right to the applied domain name. Additionally, the Section 21 (3) gives the validation agent a right in its sole discretion to conduct further investigations into the circumstances of the application.\r\n\r\nChapter V. of the Sunrise Rules, Sections 12 to 18, provides for the lists of acceptable forms of documentary evidence by means of which a prior right should be demonstrated. The forms of acceptable documentary evidence vary depending on the type of prior right claimed in the application.\r\n\r\nThe Article 10 (1) of Commission Regulation (EC) No 874\/2004 does not define an exhaustive list of acceptable prior rights. However, whichever the prior right, which the applicant has claimed in its application, is, the applicant is obliged to submit acceptable documentary evidence showing that he or she is the holder of the prior right claimed on the name in question. \r\n\r\nThe acceptable documentary evidence for prior rights marked as “Other” in the application are, in accordance with Section 12 (1) of the Sunrise Rules, the following:\r\n(i) an affidavit signed by a competent authority, legal practitioner or professional representative declaring that the type of prior right claimed by the Applicant is protected under the laws of the relevant member state, including\r\na.references to the relevant legal provisions, scholarly works and court decisions\r\nb.the conditions required for such protection; and\r\n(ii) proof that the complete name for which prior right is claimed meets all the conditions set forth in such laws, including the relevant scholarly works and court decisions, and that such name is protected by the relevant prior right claimed.\r\n \r\nSection 12 (2) of the Sunrise Rules further provides that it is in any case sufficient to submit a copy of a relevant final judgement by a court or an arbitration decision of an official alternative dispute resolution entity competent in at least one of the member states stating that the applicant has protection for the complete name for which a prior right is claimed.\r\n\r\nFinally, Section 12 (3) of the Sunrise Rules provides that if, under the law of the relevant member state, the existence of the prior right claimed is subject to certain conditions relating to the name being famous, well known, publicly or generally known, have a certain reputation, goodwill or use, or the like, the applicant must furthermore submit\r\n(i) an affidavit signed by by a competent authority, legal practitioner or professional representative, accompanied by documentation supporting the affidavit or\r\n(ii) a relevant final judgement by a court or an arbitration decision of an official alternative dispute resolution entity competent in at least one of the member states\r\nstating that the name for which a prior right is claimed meets the conditions provided for in the law (including the relevant scholarly works and court decisions and certain other conditions of the relevant member state in relation to the type of prior right concerned.\r\n\r\nThe type of the prior right was marked as “Other” by the Complainant in the application. Therefore, the above listed documentary evidence indicated in Section 12 of the Sunrise Rules would have been sufficient evidence to prove the existence of the prior right the Complainant claimed in its application for the domain name <netcards.eu>. \r\n\r\nThe documentary evidence provided by the Complainant consisted of the following documents:\r\n1) a grant agreement under the eTen program from the European Commission for a project of market validation entitled \"Netc@rds for eEHIC - Demonstrators of Smart Cards and Network Solutions for European Health Insurance Card Electronotification\"; \r\n2) amendments to this grant agreement; \r\n3) an agreement establishing an economic interest grouping GIE SESAM-VITALE. \r\n\r\nConsequently, the documentary evidence submitted by the Complainant did not meet the criteria set forth in the Commission Regulation (EC) No 874\/2004 and the relevant Sunrise Rules Sections 12 (1), 12 (2) or 12 (3)\r\n\r\nFor the sake of completeness, the Panel wishes to clarify that neither did the documentary evidence meet any other criteria set for in the Commission Regulation (EC) No 874\/2004 and the Sunrise Rules Section 12 for acceptable forms of documentary evidence to prove any other type of prior right that could be claimed during the Sunrise II period.\r\n\r\nIn accordance with the Commission Regulation (EC) No 874\/2004 and the Sunrise Rules the burden of proof is on the applicant to provide conclusive information to the validation agent to enable it to make a prima facie decision on the matter. The documentary evidence submitted by the Complainant was not sufficient to prove that the Complainant (i.e. the Applicant) was the holder of the prior right it had claimed in its application for the domain name <netcards.eu> and the Complainant has thus failed to prove the existence of its claimed prior right. \r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and therefore rejects the Complaint.",
    "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": "2007-01-18 00:00:00",
    "informal_english_translation": "The Complainant, GIE GESAM-VITALE has requested annulment of the decision made by the Respondent, EURid, regarding the domain name <netcards.eu>. The Complainant has further requested the disputed domain name to be attributed to the Complainant.\r\n\r\nThe disputed domain name <netcards.eu> was applied by the Complainant during the second phase of the phased registration period, i.e. the Sunrise II period. The Complainant claimed prior right to the name NETC@RDS protected in France. The type of the prior right was marked as “Other” in the application. The Complainant timely submitted the documentary evidence to the validation agent. The Respondent refused the Complainant’s application was refused on grounds that the documentary evidence was not sufficient to prove that the Complainant was the holder of the claimed prior right.\r\n\r\nThe Article 10 (1) of Commission Regulation (EC) No 874\/2004 does not define an exhaustive list of acceptable prior rights. However, whichever the prior right, which the applicant has claimed in its application, is, the applicant is obliged to submit acceptable documentary evidence showing that he or she is the holder of the prior right claimed on the name in question. \r\n\r\nThe type of the prior right was marked as “Other” by the Complainant in the application. However, the documentary evidence submitted by the Complainant did not meet the criteria set forth in the Commission Regulation (EC) No 874\/2004 and the Sunrise Rules Section 12 for acceptable forms of documentary evidence by means of which a prior right to a right marked in the Complainant’s application should be demonstrated. Neither did the documentary evidence meet any other criteria set for in the Commission Regulation (EC) No 874\/2004 and the Sunrise Rules Section 12 for acceptable forms of documentary evidence to prove any other type of prior right that could be claimed during the Sunrise II period.\r\n\r\nIn accordance with the Commission Regulation (EC) 874\/2004 and the Sunrise Rules the burden of proof on demonstrating that the Applicant of a .eu domain name is the holder of the prior right claimed in the application is on the Applicant. Without conclusive documentation, in accordance with the Sunrise Rules Section 12, evidencing that the Complainant was the holder of a prior right in the name <netcards.eu> in the meaning of Article 10 (1) of Commission Regulation (EC) No 874\/2004, the Respondent could not make a decision to accept the Complainant’s application for the domain name <netcards.eu>.\r\n\r\nBased on the foregoing, the Panel finds that the decision made by the Respondent to reject the application made by the Complaint was justified and therefore rejects the Complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}