{
    "case_number": "CAC-ADREU-003614",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "1.\tThe Complainant is Nintendo of Europe GmbH, a member of the international Nintendo group of companies.  It applied for the domain name mario.eu (“the Domain Name”) on 7 December 2005.  It provided documentary evidence in support of that application by 13 January 2006, within the Phased Registration Period.  \r\n2.\tThe documentary evidence submitted by the Complainant in support of its application consisted of a Licence Declaration for a Registered Trade Mark, between Nintendo Co., Limited and the Complainant in respect of the trade mark MARIO, registered in Germany.  EURid, the Respondent, rejected the application on the basis that the documentary evidence received did not demonstrate the claimed prior right in the application itself, which referred to a national registered trade mark protected in Malta.  \r\n3.\tThe Complaint seeking the annulment of EURid's decision was filed on 24 October 2006.   The formal date of commencement of the ADR proceedings was 13 November 2006.  The Respondent responded on 9 January 2007.  \r\n4.\tOn 9 January 2007 Robert Elliott was appointed panelist in the matter (“the Panel”), having filed the necessary Statement of Acceptance and Declaration of Impartiality and Independence.",
    "other_legal_proceedings": "None of which the Panel is aware",
    "discussion_and_findings": "19.\tThe Panel considers that the Further Statement provided by the Respondent has conclusively established that there was a mistake made by the Registrar in submitting the application for the Domain Name, which appears to be accepted by the Complainant.  The Complainant’s instructions to the Registrar referred to and relied upon the Complainant’s status as a licensee of the German registered trade mark MARIO.  The paperwork provided in support of the application confirmed that status.  However, in submitting the application, the Registrar designated Malta as the territory for which the prior right was claimed.  \r\n20.\tTherefore, the Panel considers that its task is essentially restricted to deciding: firstly, whether the fact that the mistake was by the Complainant’s Registrar is relevant; secondly, whether the nature of the mistake is such that it is only of “minimal” consequence, and therefore that the validation agent adopted a too formalistic approach which contravened the spirit of the phased registration as provided for by the Regulation; and thirdly whether it is relevant that the validation agent could, by reference to the documentary evidence supplied, have satisfied itself that the Complainant was the holder of a prior right in respect of Germany, even if that did not coincide with the country identified in the application itself.  \r\n21.\tAs regards the first question, the Panel sees no reason to depart from the previous ADR decisions relied upon by the Respondent, namely that the Registrar acts on behalf of the applicant and the applicant is responsible for any mistakes.  Any default by the Registrar in carrying out its instructions should be taken up as between the Complainant and the Registrar, and is not a reason for overturning the Respondent’s decision.\r\n22.\tAs regards the question of the nature of the mistake, there have already been conflicting decisions reached by other Panels in previous cases.  The ADR decisions relied upon by the Complainant (ADI (no. 830), PRIXARCTRIOMPHE, GRANDSTEEPLE (no. 2088) and F-ZERO (no. 1912)) effectively concluded that this kind of mistake was not material.  The Panel in the TECNO-CENTER (no. 2756) case relied upon by the Respondent took the opposite view, and decided that the error was substantial.  It is clearly unsatisfactory that different Panels have reached different views on very similar facts. This may well indicate that the question is a “borderline” one, and one where sympathy for the applicant has to be balanced against non-compliance with the applicable rules.\r\n23.\tIn this case, although sympathetic to the Complainant, the Panel does not consider that the mistake is a “minimal inconsistency”.  An applicant is directed to provide details of the country in which the Prior Right claimed is protected, under Section 3(1) of the Sunrise Rules, which in turn implement Article 12(3) of the Regulation in that respect.  The WHOIS database maintained by the Respondent, which is searchable by third parties, reproduces that information.   If the information is incorrect, that mistake will not be apparent to any third party.  It is certainly conceivable, as the Respondent suggests, that any such third party could be induced to act on the basis of that information in a way which it would not otherwise do (in particular in relation to whether or not to consider initiating its own ADR proceeding).  In the Panel’s view, any ruling which overturns a decision by the Respondent to reject an application on the grounds that such decision had been too formalistic, should be confined to very clear cases (such as those relating to obvious typographical errors, or the technical inability to fill in the whole of an applicant’s corporate name in the field in question).  In the Panel’s view, this is not such a case.  The Panel therefore respectfully disagrees with the contrary conclusions which the Panelists reached in the ADR decisions ADI (no. 830), PRIXARCDETRIOMPHE, GRANDSTEEPLE (no. 2088) and F-ZERO (no. 1912).  In particular, the Panel considers that the potential position of other would-be applicants must be taken into consideration when deciding whether the inconsistency is minimal (rather than having to “stand back” from such considerations, as the Panelist observed in PRIXARCDETRIOMPHE, GRANDSTEEPLE (no. 2088)).  Therefore, the Panel respectfully agrees with the conclusion of the Panelist in TECNO-CENTER (no. 2756) that the mistake is “not minor and affects substantially the basis of the request”.\r\n24.\tFinally, as to the supposed ability of the Respondent to form a view on the basis of the documentary evidence provided that there was a valid prior right (but in respect of Germany, rather than Malta), the Panel agrees that the Respondent’s role is to assess the material before it, on the basis of the application submitted on behalf of the Complainant.  There was clearly a discrepancy between the documentary evidence supplied, and the prior right country claimed.  The Respondent, through its validation agent, has a discretion to conduct its own investigations into the circumstances of the prior right claimed under Section 21(3) of the Sunrise Rules, but is not obliged to do so.  In this case, it appears that the validation agent did not make such enquiries, but instead concluded, correctly, that the documentary evidence supplied did not match the prior right country claimed.  Therefore, the Respondent rejected the application correctly, and the Panel sees no reason to overturn that decision.",
    "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": "2007-01-26 00:00:00",
    "informal_english_translation": "The Complainant challenged EURid's decision to refuse to register the disputed domain name mario.eu.  EURid refused to register the disputed domain name, on the basis that the evidence received by EURid did not demonstrate the prior right claimed.  The evidence received by EURid showed that the Complainant was the licensee of a German registered trade mark MARIO.  However, the application submitted on behalf of the Complainant by its Registrar mistakenly referred to the prior right country as Malta.  It appears that this was clearly the Registrar’s mistake.  \r\n\r\nThe Panel concluded that: the mistake by the Registrar was a matter as between the Complainant and its Registrar, and not a reason for overturning EURid’s decision; a mistake as to the prior right country in an application was a material one, which justified EURid’s decision to refuse the application, in particular given that the prior right country field is searchable by third parties in the WHOIS database and might be relied upon, and; it was not for EURid to overlook the discrepancy between the documentary evidence filed, and the prior right country claimed.\r\n\r\nTherefore, EURid was correct in its decision to refuse registration, and the Complaint was dismissed.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}