{
    "case_number": "CAC-ADREU-003859",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "On 7 February 2006, the Complainant Octoplus applied for the registration of the domain name <octoplus.eu> on the basis of the trade and company name OCTOPLUS.\r\n\r\nAs documentary evidence in support of its domain name application,  the Complainant sent to the Validation Agent within the given deadline, a certificate of registration with the the Dutch Chamber of Commerce of Rijnland of the company \"OctoPlus International Holding B.V.\", and relevant articles of association.\r\n\r\nBased on the documentary evidence, the Validation Agent found that the Complainant did not demonstrate that it was the holder, or the licensee of a prior right on the name OCTOPLUS. More specifically, the Validation Agent found that:\r\n\r\n1) The Complainant did not establish that the company name or the trade name upon which the Complainant based its domain name application were protected under the law of the Netherlands since it did not submit any proof of public use in the course of trade; \r\n\r\n2) The company name mentioned as prior right to support the domain name application does not consist of the complete name of the domain name applied for; and\r\n\r\n3) The Complainant did not submit official documents showing that it is the same company as the company mentioned in the documentary evidence.\r\n\r\nTherefore, the Respondent rejected the domain name application.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceeding, pending or decided, relating to the disputed domain name.",
    "discussion_and_findings": "In order to determine whether the Respondent's decision to reject the domain name application conflicts with the applicable Regulations, the Panel shall examine the two following issues:\r\n\r\na) whether the applicant\/Complainant filed documentary evidence sufficient to support earlier trade and company name rights; and\r\n\r\nb) whether the domain name applied for consists of the complete name for which said trade and company name rights exist according to the documentary evidence filed by the applicant. \r\n\r\nThe Panel should conclude that the Respondent was right in rejecting the domain name application if any of the two conditions mentioned above is not satisfied. Conversely, should both these conditions be met, the Panel should also examine whether the applicant successfully proved that it is the owner of the prior rights claimed in support of the disputed domain name application.\r\n\r\nI. The documentary evidence filed in connection with the <octoplus.eu> application\r\n\r\nThe applicant filed an application for the registration of the domain name <octoplus.eu> based on a Dutch trade and company name. The applicant submitted as documentary evidence a copy of a certificate of the Chamber of Commerce of Rijnland of the company \"OctoPlus International Holding B.V.\" and relevant articles of association. \r\n\r\nAt this stage, it is necessary to verify whether the copy of a certificate of the Chamber of Commerce of Rijnland of the company \"OctoPlus International Holding B.V.\" and relevant articles of association supplied as documentary evidence are sufficient to prove the existence of prior trade and\/or company name rights as requested by the applicable rules.\r\n\r\nThe Panel will examine under point II below whether the domain name applied for consists of the complete name for which the trade and company name rights exist according to the documentary evidence filed by the applicant. \r\n\r\nUnder Section 16 (5) of the Sunrise Rules: \"[u]nless otherwise provided in Annex 1 hereto, it is sufficient to submit the following Documentary Evidence for trade names and business identifiers referred to in Section 16(2) respectively 16(3): \r\n\r\n(i) where it is obligatory and\/or possible to register the relevant trade name or business identifier in an official register (where such a register exists in the member state where the business is located):\r\n\r\na. an extract from that official register, mentioning the date on which the trade name was registered; and\r\n\r\nb. proof of public use of the trade name or business identifier prior to the date of Application (such as, but not limited to, proof of sales volumes, copies of advertising or promotional materials, invoices on which the trade name or business identifier is mentioned etc., proving public use of the name in the relevant member state); (…)\".\r\n\r\nAs far as trade name protection in the Netherlands is concerned, Annex 1 to the Sunrise Rules requires the applicant to submit \"documentary evidence as referred to in Section 16(5) of the Sunrise Rules\" and adds that \"use of the trade name in the course of trade must be demonstrated\".\r\n\r\nUnder Section 16(4) of the Sunrise Rules: \"[u]nless otherwise provided in Annex 1 hereto, it shall be sufficient to submit the following Documentary Evidence for company names referred to in Section 16(1):\r\n\r\n(i) an extract from the relevant companies or commercial register;\r\n\r\n(ii) a certificate of incorporation or copy of a published notice of the incorporation or change of name of the company in the official journal or government gazette; or \r\n\r\n(iii) a signed declaration (e.g. a certificate of goods standing) from an official companies or commercial register, a competent public authority or a notary public.\r\n\r\nSuch Documentary Evidence must clearly indicate that the name for which the Prior Right is claimed is the official company name or one of the official company names of the Applicant\".\r\n\r\nAnnex 1 to the Sunrise Rules requires the applicant to submit \"documentary evidence as referred to in Section 16(5) of the Sunrise Rules\" and explains that \"use of the company name in the course of trade must be demonstrated (cf trade names)\".\r\n\r\nIt appears from the above that as far as the territory of the Netherlands is concerned, the documentary evidence to be filed in connection with company name rights is the same as the one to be filed in connection with trade names. \r\n\r\nThe applicant filed an extract from the Chamber of Commerce of Rijnland, but failed to provide any proof of public use of the trade\/company name prior to the date of the domain name application through, for instance, proof of sales volumes, copies of advertising or promotional materials, invoices on which the trade name is mentioned etc., as requested by Section 16(5) b. of the Sunrise Rules.\r\n\r\nIn its complaint, the Complainant merely asserts that \"Complainant uses the name Octoplus since May 2, 1997\", and refers to the extract of the company Octoplus N.V. supplied as Annex 1 to the Complaint. This assertion does not comply with the requirement of Section 16(5) b. of the Sunrise Rules, as it does not prove any use of the trade and\/or company name Octoplus inteh course of trade. \r\n\r\nMoreover, according to Article 22 (11) of the Regulation, the only duty of the Panel in this ADR proceeding, is to examine whether the challenged decision conflicts with the applicable regulations. Under Article 14 of the Regulation, any application received during the phased registration shall be supported by documentary evidence showing that the applicant is the holder of the prior right claimed on the name in question. The applicant shall submit the evidence to the validation agent within forty days from the submission of the domain name application. If the documentary evidence has not been received by this deadline, the application for the domain name shall be rejected.\r\n\r\nIt results from the above that only the documents supplied as documentary evidence within forty days as of the filing of the domain name application shall be taken into consideration in order to assess whether the applicant is entitled to the requested domain name. Any other document supplied at a later stage shall be disregarded. The Panel is not entitled to validate the Complainant's application on the basis of documents filed at a later stage.\r\n\r\nIn the light of the foregoing, the Panel concludes that the applicant failed to demonstrate that it is the holder of the claimed trade and\/or company name prior rights. This circumstance is already sufficient to reject the Complaint's assertions and to confirm the Respondent's decision to reject the domain name application. However, for the sake of completeness, the Panel will also examine the second issue mentioned above.\r\n\r\n\r\nII. The compliance with Article 10(2) of the Regulation\r\n\r\nAccording to Article 10 (2) of the Regulation, \"[t]he registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists\". \r\n\r\nIn other words, but for the exception mentioned below, the prior rights cited as a basis of the disputed domain name application as appearing in the documentary evidence and the domain name applied for should match exactly. If there is a discrepancy between the trade\/company name cited as a basis of the domain name application and the domain name, the application should be rejected. \r\n\r\nIn the case at issue the applicant filed evidence referring to the company OctoPlus International Holding B.V., while the domain name applied for is <octoplus.eu>. It is apparent that there is no coincidence between the two names. \r\n\r\nThe Complainant tries to overcome this issue by alleging that \"although during the application the statutionary name of the company was OctoPlus International Holding B.V., the relevant and correct name of the company was Octoplus\". In order to support this argument, the Complainant refers to the documents filed under Annexes 1 and 3 to the Complaint. \r\n\r\nThe Panel already mentioned that any document not included within the documentary evidence, shall not be taken into consideration for the reasons explained above. The mere assertion that the correct name of the company is Octoplus, rather than OctoPlus International Holding B.V., is irrelevant and groundless.\r\n\r\nThe Complainant adds that on 4 October 2006 OctoPlus International Holding B.V. changed its name into Octoplus B.V.. However, also this circumstance is irrelevant, since the change of name occurred after the filing of the domain name application and submission of the documentary evidence.\r\n\r\nFinally, the Complainant argues that the company name OctoPlus International Holding B.V. should have been considered capable of supporting the registration of the domain name <octoplus.eu> because the terms \"International \" and \"Holding\" are considered common in the course of trade.\r\n\r\nThe Panel does not share this view. According to Section 19(5) of the Sunrise Rules, \"[f]or trade names, company names and business identifiers, the company type (such as, but not limited to \"SA\", \"GmbH\", \"Ltd.\" or \"LLP\") may be omitted from the complete name for which the Prior Right exists\". Nowhere else are there provisions stating that other elements of company or trade names may be disregarded at the time of the registration of a domain name during the second phased registration period. Therefore, as far as company and trade names are concerned, the only exception to the general rule of Article 10(2) of the Regulation that \"the registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists\", is that of Section 19(5) of the Sunrise Rules, mentioned above.\r\n\r\nIn the company name \"OctoPlus International Holding B.V.\", the terms \"International\" and \"Holding\" do not designate the type of company. Only the initials \"B.V.\" do. Accordingly, the terms \"International\" and \"Holding\" cannot be disregarded for the purpose of Article 10(2) of the Regulation.\r\n\r\nThe Complainant also claims to own prior rights over the trademark OCTOPLUS and to this aim encloses as Annex 2 to the Complaint a copy of the Benelux and Community trademark registrations. As mentioned above, the Panel cannot take into consideration these additional documents as the OCTOPLUS trademarks were not among the prior rights cited as a basis of the domain name application. Accepting to examine these additional documents and perhaps to annul the Respondent's decision to reject the domain name application on the basis of these trademark registrations would be equivalent to grant a second chance to the Complainant, permitting him to correct the mistakes made at the time of the filing of the application and documentary evidence. This would clearly fall outside the scope of the phased registration, which grants the holder of prior rights the opportunity to register domain names in advance provided they comply with the specific requirements set forth by the applicable regulations. As already stated, the scope of this ADR proceeding is to assess whether the Registry\/Respondent's decision is in contrast with the applicable regulations, not to allow a second chance to the Complainant for the registration of the rejected domain name application. \r\n\r\nFinally, the Panel cannot share the Complainant's assertion that the Validation Agent should have conducted investigations as to the fact that the applicant owned earlier rights over the name Octoplus.  \r\n\r\nAccording to Section 21(2) of the Sunrise Rules, \"[t]he 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  (...)\". Section 21(3) of the Sunrise Rules further state that \"[t]he Validation Agent is not obliged, but is permitted in its sole discretion, to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced\". \r\n\r\nThus, as the Respondent correctly points out, the Validation Agent is under no obligation, but is only permitted to conduct its own investigations into the circumstances of the application and the contents of the documentary evidence. Stating the contrary would mean that through his personal investigations the Validation Agent should correct the applicants' mistakes in their domain name applications, which clearly goes beyond the Validation Agent's powers and outside the scope of the phased registration period outlined above. \r\n\r\nThe Complainant cites two case law precedent in its favour, namely the ADR decisions Schoeller (No. 253) and Capri (No. 396). The Panel shares the fact that the Validation Agent is not exempted from the requirement to act reasonably as the extent of the discretion granted to the Validation Agent implies a higher standard of care and reasonableness, as expressed by the Panel in the Schoeller decision. Nevertheless, in the case at issue the task requested to the Validation Agent went far beyond the requirement to \"act reasonably\", as the Validation Agent should not have merely checked a discrepancy between the applicant's address and the address shown in the documentary evidence. In the case at issue the Validation Agent should have checked whether the company called OctoPlus International Holding B.V. was in fact named Octoplus per se, and whether Octoplus was a trade\/company name used in the course of trade. It goes without saying that the Validation Agent would have had great difficulties in accomplishing this task. Should the Validation Agent have conducted this kind of investigation it would have certainly exceeded its powers, impaired the right of other applicants to be treated equally, and contravened the contents of Article 14 of the Regulation, which places the onus of proving the existence of prior rights over the claimed domain name exclusively on the applicant.\r\n\r\nFor all the reasons mentioned above, even if the documentary evidence supplied had been considered sufficient to prove the existence of prior trade and\/or company name rights, the domain name requested would not have consisted in the complete name for which the prior right exists, as written in the documentation which proves that such a right exists.\r\n\r\nTherefore, also for this reason the Respondent was right in rejecting the application for the domain name <octoplus.eu>",
    "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": "2007-03-11 00:00:00",
    "informal_english_translation": "On 7 February 2006, the Complainant Octoplus applied for the registration of the domain name <octoplus.eu> on the basis of the trade and company name OCTOPLUS.\r\n\r\nAs documentary evidence in support of its domain name application,  the Complainant sent to the Validation Agent within the given deadline, a certificate of registration with the the Dutch Chamber of Commerce of Rijnland of the company \"OctoPlus International Holding B.V.\" and relevant articles of association.\r\n\r\nBased on the documentary evidence, the Validation Agent found that the Complainant did not demonstrate that it was the holder, or the licensee of a prior right on the name OCTOPLUS. Therefore, the Respondent rejected the domain name application. \r\n\r\nThe Panel deems that: (i) the Complainant did not establish that the company name or the trade name upon which the Complainant based its domain name application were protected under the law of the Netherlands since it did not submit any proof of public use in the course of trade; and (ii) the company name mentioned as prior right to support the domain name application does not consist of the complete name of the domain name applied for.\r\n\r\nAccording to the Panel the new evidence supplied along with the Complaint cannot be taken into consideration, nor the Validation Agent had any obligation to investigate the prior rights mentioned as the basis of the domain name application.\r\n\r\nFor all these reasons the Panel dismisses the Complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}