{
    "case_number": "CAC-ADREU-003802",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "3 April 2006 the Complainant filed for the registration of the domain name flycheap.eu in the Sunrise 2 period claiming a prior right to the name in the nature of a trade name.\r\n\r\nThe Validation Agent received the documentary evidence on 3 May 2006, which was before the 13 May 2006 deadline – hence it was in due time. The documentary evidence consisted of an official extract from the relevant company register and a company stationary (writing paper) showing the name of the Complainant and the trade name.\r\n\r\n20 October 2006 the Respondent rejected the Application on the ground that the Complainant, according to Respondent, did not submit sufficient proof of public prior use. \r\n\r\n28 November 2006 the Complainant in due time filed a Complaint against this decision.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings realted to the disputed domain name.",
    "discussion_and_findings": "This case is all about whether or not that Complainant in due time (40 days after having filed the application for the domain name flycheap.eu) to the Validation Agent according to the applicable Regulations and Sunrise Rules submitted sufficient documentary evidence of its prior right to the trade name FLYCHEAP.\r\n\r\nMainly for the reasons set out by the Respondent this Panel cannot rule in favour of the Complainant.\r\n\r\nEC Regulation 874\/2004 states in Article 10 that right holders of prior rights shall be eligible to apply to register domain names corresponding with such prior rights in a system of phased registrations – the Sunrise Periods.\r\n\r\nFurther in the said Regulation Article 14 states that such applicants much demonstrate the existence of the rights on which basis the domain name is sought registered. Such documentation must be submitted to a Validation Agent within 40 days from the submission of the application for the domain name.\r\n\r\nAs to what documentary evidence is needed with respect to the different kinds of prior rights the Sunrise Rules sets out a the terms hereof.\r\n\r\nSection 16 (5) states the following:\r\n\r\n5. DOCUMENTARY EVIDENCE FOR TRADE NAMES AND BUSINESS IDENTIFIERS\r\nUnless otherwise provided in Annex 1 hereto, it is sufficient to submit\r\nthe following Documentary Evidence for trade names and business\r\nidentifiers referred to in Section 16(2) respectively 16(3):\r\n(i) where it is obligatory and\/or possible to register the relevant\r\ntrade name or business identifier in an official register (where\r\nsuch a register exists in the member state where the business is\r\nlocated):\r\na. an extract from that official register, mentioning the date on\r\nwhich the trade name was registered; and\r\nb. proof of public use of the trade name or business identifier\r\nprior to the date of Application (such as, but not limited to,\r\nproof of sales volumes, copies of advertising or promotional\r\nmaterials, invoices on which the trade name or business\r\nidentifier is mentioned etc., proving public use of the name in\r\nthe relevant member state);\r\n(ii) where registration is not obligatory, the Documentary Evidence\r\nreferred to in Section 12(3) hereof.\r\n\r\nThe Documentary Evidence for a trade name or a business identifier\r\nmust clearly indicate that the name for which the Prior Right is claimed\r\nis the trade name or business identifier of the Applicant.\r\n\r\nThe Complainant submitted to the Validation Agent – in due time – documentation which consisted of an extract of the relevant official register. However this extract did not show the date on which the trade name was registered. The reason hereto was according to the Complainant that such data is not registered in the register and is of such out of the hands of the Complainant.\r\n\r\nThe Complainant however did not explain this to the validation agent nor did it send a copy of the application for the trade name or the like at least trying to proof that the trade name was established prior to the application for the domain name.\r\n\r\nAlso a part of the documentary evidence was a company stationary \/ writing paper showing the name of the applicant and the FLYCHEAP-logo.\r\nThe stationary was besides the name and logo a completely blank paper and showed as such no date nor any other information stating a proof of public use.\r\n\r\nThe Complainant argues that according to the relevant Dutch Laws use known to third parties is sufficient to create a trade name.\r\n\r\nThis Panel finds that a company stationary showing nothing but a blank document with the trade name (logo) and the name of the applicant does not at all meet even basic requirements for proving public use.\r\n\r\nThe mere fact that the trade name is available to the public in a company register does also not establish a proof of use.\r\n\r\nFor these reasons the Panel finds that the Complainant has not submitted proper documentary evidence showing the right to the trade name FLYCHEAP according to the Regulations and the Rules (especially Section 16 (5)).\r\n\r\nDocumentary evidence or the like presented to the Panel under this ADR proceedings that has not been submitted to the Validation Agent in due time has – in accordance with the applicable Regulations and Rules and CAC practice - not been taken into any account nor considerations.\r\n\r\nThe Panel must stress to the Respondent that the documentary evidence sent to the Validation Agent by the Complainant was in fact not submitted by the Respondent in the standard communication dated 6 December 2006. However, based upon the Parties contentions and submitted annexes the Panel finds that the Parties agrees on which documentary evidence was in fact submitted and that ths evidence was attached to the Complaint by the Complainant.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) of the ADR Rules, the Panel orders that\r\n\r\nthe Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-02-25 00:00:00",
    "informal_english_translation": "In the Sunrise 2 period the Complainant applied for the domain name flycheap.eu based upon its rights to the trade name FLYCHEAP.\r\n\r\nThe documentary evidence submitted by the Complainant to the Validation Agent consisted of an extract of the relevant company register, which – due to the nature of the Register – did not show the date on which the trade name was registered. \r\n\r\nAlso a part of the documentary evidence was a company stationary showing a blank paper with only the trade name (logo) and the name of the Complainant.\r\n\r\nThe Validation Agent \/ Respondent found that the documentary evidence did not proof public use of the trade name.\r\n\r\nThe Panel was not satisfied with the documentary evidence and found that the requirements set out in the applicable Regulations or the Sunrise Rules (Section 16 (5)) were not at all fulfilled.\r\n\r\nTherefore the Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}