{
    "case_number": "CAC-ADREU-003709",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is an Aktiengesellschaft, established at Essen, Germany within the European Community and carries on a banking business under its registered trade name NATIONAL-BANK and it is also known by the public and the media as NATIONALBANK.\r\n \r\nThe Complainant is the owner of the following German registered trademarks:\r\nNATIONAL-BANK (Wort\/-Bildmarke), no. 39743866.4;\r\nNATIONAL-BANK (Wort\/-Bildmarke), no. 39743867.2;\r\nN NATIONAL-BANK (Wort\/-Bildmarke}, no. 0523619.9;\r\nDAS ZEICHEN GUTER PARTNERSCHAFT. NATIONAL-BANK (Wort\/-Bildmarke), no. 0523620.2;\r\nN NATIONAL BANK (Wort\/-Bildmarke) no. 30523621.0\r\n \r\nThe Complainant is also the proprietor of the domain name nationalbank.de registered with the German Registrar for the .de ccTLD.\r\n\r\nOn 7 December 2005, the Applicant filed an application under the .eu Registration Policy and Terms and Conditions for Domain Name Applications made during the Phased Registration Period (hereinafter the “Sunrise Rules”) to register the domain name nationalbank.eu during Phase I of the Sunrise Period.\r\n\r\nThe Complainant’s application was refused on the grounds that it had failed to submit sufficient documentary evidence in time. see ADReu Case No. 1262 (nationalbank.eu).\r\n\r\nOn 6 April 2006, LLTF applied for the domain name nationalbank.eu. LLTF based its application seeking priority under the Sunrise Rules on its claimed ownership of a Benelux trademark N&AT&IONALBANK. \r\n\r\nThe processing agent received documentary evidence from LLTF on 10 May 2006, which was before the 16 May 2006 deadline under the Sunrise Rules. LLTF was the next applicant in line for the domain name nationalbank.eu. The first application for the domain name had been rejected and the second application had expired. The validation agent concluded from a prima facie review of the documentary evidence furnished that LLTF was the holder of a prior right as defined in Commission Regulation (EC) No 874\/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of .eu Top Level Domain and principles governing registration (hereafter \"the Regulation\") and on that basis, the Respondent accepted the LLTF's application. \r\n\r\nSubsequently the Complainant carried out a search in the online registries of both the Benelux Office for Intellectual Property and the OHIM. The searches returned no results for the mark N&AT&IONALBANK.\r\n\r\nIn a non standard submission filed on 17 November 2006, the Complainant added that it could not find the trademark N&AT&IONALBANK relied upon as a prior right by LLTF in a search of the database maintained by the Benelux Office for Intellectual Property. \r\n\r\nThe Respondent then carried out similar searches itself, and concluded that the trademark certificate submitted as documentary evidence by LLTF had been forged.\r\n\r\nPrincipal relevant provisions of the Regulations and Rules\r\n\r\nArticle 10 (1) of the Regulation 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. (hereinafter the “Sunrise Period”)\r\n \r\nPursuant to article 14 of the Regulation, each claim of prior rights under article 10 must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists. Article 14 of the Regulation also inter alia places on an applicant the obligation to submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question.  \r\n \r\nSection 21(2) of the Sunrise Rules states that: “The Validation Agent examines whether the Applicant has a Prior Right to the name exclusively on the basis of a prima facie review of the first set of Documentary Evidence received and scanned by the Processing Agent (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules”. \r\n \r\nArticle 11 of the Regulation inter alia states that “[w]here the name for which prior rights are claimed contains special characters, spaces, or punctuations, these shall be eliminated entirely from the corresponding domain name, replaced with hyphens, or, if possible, rewritten. Special character and punctuations as referred to in the second paragraph shall include the following: ~ @ # $ % ^ & * ( ) + = < > { } [ ] | \\ \/: ; ' , . ?\". \r\n \r\nArticle 14 of the Regulation furthermore provides that \"[t]he 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\nRecital 11 of the Regulation states that “[t]he principle of first-come-first-served should be the basic principle for resolving a dispute between holders of prior rights during the phased registration. After the termination of the phased registration the principle of first come first served should apply in the allocation of domain names.”\r\n\r\nArticle 14 of the Regulation also clearly states that “[t]his examination of each claim in chronological order of receipt shall be followed until a claim is found for which prior rights on the name in question are confirmed by a validation agent.”. \r\n \r\nSub-section 27 (1) of the “Sunrise Rules states that \"[i]f the ADR Proceeding concerns a decision by the Registry to register a Domain Name and the Panel or Panelist appointed by the Provider concludes that that decision conflicts with the Regulations, then, upon communication of the decision by the Provider, the Registry will decide whether or not to register the Domain Name in the name of the next Applicant in the queue for the Domain Name concerned, in accordance with the procedure set out in these Sunrise Rules\". \r\n \r\nSub-section B.11 (c) of the ADR Rules lists the remedies that are available to a panel in an ADR proceeding. It provides that \"[t]he main remedy available pursuant to an ADR Proceeding where the Respondent is the Registry shall be the annulment of the disputed decision taken by the Registry. The Panel may decide in appropriate cases that the domain name in question shall be transferred, revoked or attributed. However, with regard to any Registry decision relating to a prior right invoked during the phased registration period such measures of transfer and attribution will only be granted by the Panel if the Complainant is the next applicant in the queue for the domain name concerned and subject to the decision by the Registry that the Complainant satisfies all registration criteria set out in the European Union Regulations and to the subsequent activation by the Registry of the domain name in the name of the Complainant who is the next applicant in the queue\".",
    "other_legal_proceedings": "Decided case: ADReu Case No. 1262 (nationalbank.eu).The Complainant’s application to register the domain name nationalbank.eu was refused on the grounds that it had failed to submit sufficient documentary evidence in time.",
    "discussion_and_findings": "There are three discrete issues raised in this Complaint:\r\n\r\ni.\tthe allegation that the registrant of the nationalbank.eu domain name had no bona fide prior right upon which to ground its application during the Sunrise Period;\r\nii.\tthe Complainant’s submission that the Respondent misinterpreted and misapplied the provisions of Article 11 of the Regulation in granting the nationalbank.eu to LLTF based on claimed Prior Rights in the registration of the trade mark N&AT&IONALBANK;\r\niii.\tthe Complainant’s request for attribution of the disputed domain name in the event that this Panel should annul the decision to allocate the domain name to LLTF.\r\n\r\nAs regards, the allegation that LLTF had no bona fide prior rights upon which to ground its application for the nationalbank.eu domain name during the Sunrise Period, both the Complainant and the Respondent, having carried out searches, conclude that the LLTF did not own a registered trademark N&AT&IONALBANK as it claimed in its application.\r\n\r\nThis Panel must accept that conclusion reached by both parties on the basis of the Parties respective submissions and the evidence adduced by the Parties. \r\n\r\nThis Panel does not have the jurisdiction to decide whether the documentation submitted was a forgery as alleged by the Respondent and makes no finding in that regard. In any event this Panel could not make such a determination within the jurisdictional and procedural limitations of this procedure. \r\n\r\nArticle 10 (1) of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\") 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. Since, on the balance of probabilities, LLTF did not have the necessary prior rights to qualify as an applicant under the Sunrise Rules, it follows that the decision of the Respondent to allocate the domain name to LLTF should be annulled and this Panel directs accordingly.\r\n\r\nIn the light of the above finding, it is not necessary for this Panel to consider whether the Respondent misinterpreted and misapplied the provisions of Article 11 of the Regulation in granting the nationalbank.eu to LLTF based on claimed prior rights in the registration of the trade mark N&AT&IONALBANK.\r\n\r\nThis Panel notes the cases cited by both the Complainant and the Respondent in support of their respective positions. It is clear that panellists are divided on the interpretation of Article 11 and there are at least two schools of thought on the subject.\r\n \r\nTurning finally to the Complainant’s request for attribution of the disputed domain name, sub-section B 11 (c) of the ADR Rules provides inter alia that the main remedy available pursuant to an ADR Proceeding where the Respondent is the Registry, as in the present case, is annulment of the disputed decision. \r\n\r\nSub-section B 11 (c) further provides that a panel has jurisdiction in appropriate cases to direct that the domain name in question shall be transferred, revoked or attributed. That provision however goes on to restrict the jurisdiction of this Panel by expressly providing that with regard to any Registry decision relating to a prior right invoked during the phased registration period such measures of transfer and attribution will only be granted by the Panel if the complainant is the next applicant in the queue for the domain name concerned. \r\n\r\nIn the present case, the Respondent has stated that the Complainant is not next in the queue. The Complainant’s request to have the domain name transferred to it must therefore be refused.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the EURID's decision be annulled.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-02-11 00:00:00",
    "informal_english_translation": "On 7 December 2005, the Applicant filed an application under the .eu Registration Policy and Terms and Conditions for Domain Name Applications made during the Phased Registration Period (hereinafter the “Sunrise Rules”) to register the domain name nationalbank.eu during Phase I of the Sunrise Period.\r\n\r\nThe Complainant’s application was refused on the grounds that it had failed to submit sufficient documentary evidence in time. see ADReu Case No. 1262 (nationalbank.eu).\r\n\r\nOn 6 April 2006, LLTF applied to register the domain name nationalbank.eu. LLTF based its application seeking priority under the Sunrise Rules on its claimed ownership of the trademark N&AT&IONALBANK. It claimed that its trademark was registered in the Netherlands. \r\n\r\nOn 10 May LLTF furnished documentary evidence in support of its application and following a prima facie review of the documentation by the validation agent, the Respondent accepted LLTF's application.\r\n\r\nSubsequently searches of the Benelux and OHIM trademarks databases by both the Complainant and the Respondent produced no result for the trademark N&AT&IONALBANK. The Respondent accepted that LLTF did not have the necessary prior rights required by article 10 (1) of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (hereafter \"the Regulation\")\r\n\r\nThe Complainant raised three discrete issues:\r\n\r\ni.\tthe allegation that the registrant of the nationalbank.eu domain name had no bona fide Prior Rights upon which to ground its application during the Sunrise Period;\r\nii.\tthe Complainant’s submission that the Respondent misinterpreted and misapplied the provisions of Article 11 of the Regulation in granting the nationalbank.eu to LLTF based on claimed Prior Rights in the registration of the trade mark N&AT&IONALBANK;\r\niii.\tthe Complainant’s request for attribution of the disputed domain name in the event that this Panel should annul the decision to allocate the domain name to LLTF.\r\n\r\nThe Panel directed that the Respondent’s decision of the Respondent to allocate the domain name nationalbank.eu to LLTF be annulled, as article 10 (1) of the Regulation expressly 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. LLTF had no qualifying prior rights.\r\n\r\nThe Panel did not need to consider the issues raised by both Parties in relation to the interpretation of Article 11 of the Regulation and in particular the question as to whether Article 11 permits an applicant to eliminate an ampersand (&) from a domain name in circumstances where there is an ampersand (&) in a prior right relied upon. The Panel noted that there are at least two schools of thought on the interpretation of that provision.\r\n\r\nFinally the Panel rejected the Complainant’s request to have the domain name nationalbank.eu transferred to it. Sub-section B 11 (c) of the ADR Rules provides that a panel has jurisdiction in appropriate cases to direct that the domain name in question shall be transferred, revoked or attributed, That provision however goes on to restrict the jurisdiction of the panel by expressly providing that with regard to any Registry decision relating to a prior right invoked during the phased registration period such measures of transfer and attribution will only be granted by the Panel inter alia if the complainant is the next applicant in the queue for the domain name concerned. The evidence before the Panel is that the Complainant is not the next applicant for the domain name in the queue.\r\n\r\nThe Panel directed that the EURid decision to allocate the domain name nationalbank.eu to LLTF be annulled.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}