{
    "case_number": "CAC-ADREU-003738",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "1. Andr. Peter Esser GmbH (hereafter \"the Applicant\") applied for the domain name ESSER on 23 March 2006.\r\n\r\n2. The application was put on the basis that the Applicant had a prior right within the meaning of Article 10 of Commission Regulation No 874\/2004 of 28 April 2004 and in particular that the prior right claimed was an ‘other’ right, that is that it came within the category of rights ‘…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\n3.On 19 April 2006, which was before the 2 May 2006 deadline, the processing agent received the documentary evidence relied on by the Applicant. \r\n\r\n4. The documentary evidence received by the validation agent consisted of:\r\n\r\n(a) a letter dated 5 April 2006 and signed by a legal practitioner ( Christian Weil, Rechtsanwalt) ; and\r\n\r\n(b) supporting documentation, including copies of advertising and promotional materials and invoices on which the name ‘ESSER’ was mentioned in bold letters and large characters.\r\n\r\n5. At the invitation of the Panel, both parties provided English translations of the letter and as there is no material difference between the two, the following is the translation provided by the Complainant.\r\n\r\n‘Confirmation on trademark rights; rights in titles of works; commercial designation\r\n\r\n Dear Mr. Esser, We are glad to confirm that we have applied on November 22, 2005 for a trademark, word:  “Esser”, and this application has been allocated the file number 305 69 923.7\/23. The official fee has been paid and we trust that the sign will be registered soon. In the enclosure hereto we submit the official filing receipt of the GPTO.  Furthermore we confirm that the component of your company name “Esser” is used independently as a catch word, so that also for this use there are trademark rights and\/or name rights pursuant to S. 12 of the German Civil Code. We confirm that the designation “Esser” is used independently as a commercial designation pursuant to the rules as set out in the German Trademark Act. We attach in the enclosure hereto some advertising material, letterheads and invoices, from which it can be seen that the designation “Esser” is used independently in accordance with S. 5 of the German Trademark Act.  To this end, the commercial designation “Esser” is used independently ever since the foundation of the company in the year 1897, when the company was in sole proprietorship and has  only been subsequently transformed into a “GmbH” (a limited liability company).  Lastly we confirm that you use the designation “Esser” independently also as a title of works, for example in the internet, for years.  \r\n\r\nWith kind regards  (Signature Christian Weil)  -Rechtsanwalt- (Attorney at law) Enclosure:  - Filing receipt GPTO  - Miscellaneous advertising material, invoices.’\r\n\r\n6. The validation agent concluded from a prima facie review of the documentation that the Applicant was the holder of a prior right on the name ESSER.\r\n\r\nAccordingly, the Respondent (EURid) accepted the Application’s application on 23 October 2006.\r\n\r\n7. The Complainant brings these proceedings to obtain annulment of the decision taken by EURid on the ground that the applicant has no valid prior right to the domain name ESSER.EU that qualifies as an ‘other’ right under Article 10 of Commission Regulation No 874\/2004 of 28 April 2004.\r\n\r\n8. The Panel was appointed on 12 January 2007.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings involving the disputed domain name.",
    "discussion_and_findings": "After reading and considering the English translation of the documentary evidence submitted to the validation agent, the Panel raised with the parties by Nonstandard Communication an important threshold question.\r\n\r\nThat question was whether the major component of the documentary evidence, which was, to use a neutral expression, a letter from a lawyer, could constitute an affidavit for the purposes of Section 12 (3) of the Sunset Rules.\r\n\r\nThis was an important threshold question because, it seemed to the Panel that if the letter were not an affidavit, the validation agent and subsequently the Respondent made their decision not merely on allegedly inadequate evidence, but on no evidence at all and consequently inconsistently with the regulations. As Section 12(3) clearly requires the Applicant’s case to be made out by means of an affidavit, it could not have made out a case within the meaning of Section 12(3) without having submitted an affidavit. \r\n\r\nAccordingly, the Panel specifically sought the views of the parties on whether the letter of 5 April 2006 constituted an affidavit or otherwise came within the requirements of Section 12 (3). Both parties have been helpful to the Panel in providing it with their views and expressing them so clearly.\r\n\r\nThe Respondent has not submitted a legal opinion, but its views have been closely argued and like the Complainant’s opinion have been of considerable assistance. \r\n\r\nThe result, however, is that the Panel is of the opinion that the letter relied on is not an affidavit and that there was consequently no material before the validation agent and the Respondent on which they could have made the decision they did. \r\n\r\nThe reasons why the Panel has reached this decision are as follows.\r\n\r\nFirst, the Panel has been influenced by the opinion of Dr Bockenholt which is not contradicted by the Respondent on the opinion on the law that it expresses. The Panel accepts the propositions of law contained in the opinion as they appear to have the hallmarks of a correct statement of the German law and because they accord with generally accepted requirements for proper affidavits and similar dispositions.\r\n\r\nThe opinion makes the valid point, with which EURid agrees, that the starting point must be the requirements of the German law. \r\n\r\nThat being so, it is instructive to see that in the original German version of the Rules, the required document is described as an Eidesstattliche Versicherung. The Eidesstattliche Versicherung is a declaration in lieu of an oath, meaning that instead of a deponent appearing in Court and swearing or affirming to evidence, he or she may put the proposed evidence into a documentary form and swear or affirm it to be true. If that is done, the document may be accepted by the tribunal or body to which it is submitted, initially as prima facie evidence and subsequently as conclusive evidence. \r\n\r\nBut as Dr Bockenholt makes plain, the essence of the Eidesstattlichte Versicherung is that it is a declaration and it requires an oath or affirmation as its most essential ingredient and without that ingredient it is not evidence. \r\n\r\nAs the Eidesstattliche Versicherung is known and has a precise and very significant use, it is not surprising that it is recognised by the German Code of Civil Procedure and that, to deter perjury, it is also recognised by the German Criminal Code. \r\n\r\nAccordingly, it must be presumed that the European legislators who drafted the Sunrise Rules knew exactly what they were asking for when they stipulated an Eidesstattlichte Versicherung and, in the English version, an affidavit, as the means to be adopted by applicants in cases such as the present to establish their claims. \r\n\r\nNor is it surprising that they should have done so. They were in effect legislating for a form of summary judgement where one party would have an instant remedy by gaining the domain name in question in preference to all others. It would thus have been surprising if the legislators had opted for anything other than a requirement of evidence that was sworn to or affirmed as being true. \r\n\r\nMoreover, the legislators made the requirement mandatory by the time-honoured use of the word ‘must’ in Section 12(3), making it as plain as could be, that they wanted applicants to comply with these requirements.\r\n\r\nOn this occasion, the mandatory requirement is for evidence supported by oath or affirmation.\r\n\r\nConsequently, the present case is not a borderline one where there is some minor departure from the specified requirements, but rather it is one where the most essential requirements of an Eidesstattlichte Versicherung, or an affidavit, is missing, an element that goes to the substance of the required proof.\r\n\r\nIt is here that the Panel must respectfully disagree with the two principal points made by the Respondent.\r\n\r\nFirst, the Respondent submits that the omission of the swearing or affirming to the veracity of the contents of the document can be treated as an ‘obvious mistake’ and overlooked. In this regard, it relies on decision 2796 (EICHHORN) available online at http:\/\/adreu.eurid.eu\/adr\/decisions\/decision.php?dispute_id=2796.\r\n\r\nIt is true that in that case, by a majority decision, but with a powerful dissent, the panel decided that it could in effect overlook what was described as a mistake in the material submitted, which consisted of a statement verifying that the applicant could claim a civil name right under German law.\r\n\r\nThe mistake was that \r\n\r\n‘…the statement was formulated in a way as if it was made by the Complainant whereas it should have been formulated in a way that the document contains the legal considerations of the notary himself ’,\r\n\r\n although both the individual party and the notary signed the document.\r\n\r\nBut in that case, as the decision shows, the statement was actually headed “Eidesstattliche Versicherung” and the Applicant-deponent declared it ‘in lieu of oath’, after being informed about the consequences of a wrong affidavit. \r\n\r\nSo the Rule had in substance been complied with. In the EICHORN case, there was an Eidesstattliche Versicherung, but in the present case there is not, for the essential elements are missing. In the EICHORN case, the requirements of the Rules had been met whereas in the present case they have not. The case is therefore not authority for the proposition that when the Rules call for an affidavit, non-compliance can be overlooked as a mere mistake.\r\n\r\nThat leads to the second departure that the Panel must, with respect, make from EURid’s position. EURid argues that to reject the Applicants letter is to \r\n\r\n‘seek the application of the national rules of evidence or civil procedure of the various Member States’.\r\n \r\nThe panel does not accept that argument because the issue under debate is not a rule of evidence or procedure but a matter of substantive law. The issue is not the form that the affidavit should take, for its form and contents will clearly vary from one jurisdiction to another, but the substantive question of whether a mandatory law on proving a prior intellectual property right need be complied with.\r\n\r\nThe view of the Panel on that matter of substance is not to apply the rules of procedure or evidence of any State, but to implement the collective view of all Member States that where it is specified to be a mandatory requirement, the prior right can be established only by sworn or affirmed evidence.\r\n\r\nIn the view of the Panel, the letter submitted on behalf of the Applicant was not an affidavit as required by Section 12(3) of the Sunset Rules and neither the letter nor its enclosures were properly before the validation agent or EURid and could not be relied on to obtain the decision that is the subject of the Complaint. Accordingly, pursuant to Section 26(2) of the Sunrise Rules the decision of the Registry conflicted with the Regulations. In particular, it conflicted with Article 14 of the Regulations that requires all claims for prior right to be verifiable by documentary evidence that demonstrates the right under the law by virtue of which it exists, for there was no documentary evidence that could have been accepted.   \r\n\r\nIn view of the decision taken, it is not necessary to comment on whether, had the letter been an affidavit, it met the additional requirement of Section 12 (4) and verified the competence of the signatory or on the wider question of whether the contents of the document were sufficient evidence to make out the case under Section 12 (3) and establish the prior rights claimed.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that EURid´s decision be annulled.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-02-07 00:00:00",
    "informal_english_translation": "The Applicant successfully applied for the domain name ESSER, claiming it as an ‘other’ prior right under Article 10 of Commission Regulation No 874\/2004.\r\n\r\nThe documentary evidence relied on by the Applicant consisted of:\r\n\r\n(a) a letter dated 5 April 2006 and signed by a legal practitioner; and\r\n\r\n(b) supporting documentation, including copies of advertising and promotional materials and invoices on which the name ‘ESSER’ was mentioned in bold letters and large characters.\r\n\r\nThe letter was not sworn or affirmed.\r\n\r\n The validation agent concluded from a prima facie review of the documentation that the Applicant was the holder of a prior right to the name ESSER and EURid therefore accepted the application.\r\n\r\nThe Complainant brought these proceedings to obtain annulment of the decision taken by EURid on the ground that the applicant had no valid prior right to the domain name ESSER.EU that qualifies as an ‘other’ right under Article 10 of the Regulations.\r\n\r\nAs a threshold question, the Panel invited the parties to make submissions on whether the letter was an ‘affidavit’ for the purposes of Section 12 (3) of the Sunset Rules. The Complainant submitted that the letter was not an‘affidavit’. The Respondent contended that it was an affidavit.\r\n\r\nThe Panel decided that the letter was not an affidavit, that the decision should accordingly not have been made on the basis of the documentary material before the validation agent and the Registry and that the decision was therefore contrary to the Regulations and should be annulled.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}