{
    "case_number": "CAC-ADREU-003896",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is a privat limited company incorporated on January 11, 2006 under the UK Companies Act 1985 with the company name „VINOS LTD“ (Annex 2). \r\nThe Respondent has registered the domain name at issue during the public landrush period on November 21, 2006.",
    "other_legal_proceedings": "None",
    "discussion_and_findings": "1. Following paragraph B.11(d)(1) ADR Rules it is necessary for the Complainant for making out a successful case to prove that \r\n(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law and; either\r\n(ii) The domain name has been registered by the Respondent without rights or legitimate interest in the name; or\r\n(iii) The domain name has been registered or is being used in bad faith.\r\n\r\nFollowing these requirements as basis for a decision in favour of the Complainant, he has to prove requirement (i) and additionally either recital (ii) or (iii). It is the Panels conviction, that the Complainant has already failed to meet the first requirement of paragraph B.11(d)(1)(i)-(iii), because he could not show a right in the sign “vinos”, recognized or established by a national law of a member state and\/or Community law:\r\n\r\n2. \"Vinos\" is a generic and with regard to the \"wine-business\" a descriptive word which could never be registered as a trademark for goods or services relating to wines unless it is general accepted in the trade through usage. If the Complainant were able to get such rights via business-name, it would be easy to circumvent the general principle of trademark-law not to register generic, descriptive or non-distinctive signs!\r\n\r\n2.1 Although the Complainant was able to register the company name „Vinos Ltd“ under the UK Companies Act 1985 in the companies register, it is not possible to deduce from such a registration an exclusive right which exclude other persons from using such generic and descriptive signs. \r\nAlso the UK-law of passing off gives the Complainant no remedy which excludes others from using the word \"vinos\", because the basic requirements for passing off actions, especially set out in the leading cases Perry v Truefitt, Erven Warnink Besloten Vennootschap v J Twonend & Sons, Reckitt & Colman Products Ltd v Borden Inc and Consorzio de Proscuitto die Parma v Marks and Spencer plc are not met.\r\n\r\n2.2 The Complainant could not establish a right in the name “vinos” under German law either:\r\nA right in a business name cannot be reached by the mere registration in the company register but only by the use of the designation in Germany in commerce. \r\nA Protection for a business name under sec. 5 para 2 German Trademark Act requires that\r\n The name has been used in Germany in commerce;\r\n The use must suggest a certain duration and consitency;\r\n The name must be distinctive.\r\n\r\nThe mere application to register the seat of the company in Germany cannot be considered as proof for a use in commerce in Germany.\r\n\r\nThis Panel assumes moreover that the vast majority of German consumers are aware of the fact that the Spanish word \"VINOS\" means wines in German. This is true especially with regard to the internet society and to “wine-consumers”. The word “vinos” therefore is not distinctive but merely descriptive and generic with regard to goods and services relating to wine. In this respect the designation “VINOS\" must be available also for other companies dealing with the import and distribution of wines. \r\n\r\n2.3 Although the Complainants trading license (Annex 1) not only shows wholesale of wines and import of delicatessen and wine but also development and distribution of software, sales in general, internet services, medical consultancy and solutions, it is the Panels conviction that the mere fact of showing invoices, business cards and a trading license does not give special rights in the name “Vinos” with regard to goods or services relating to wines. Sec 5 German Trademark Act requires for business names to be protected either distinctiveness or general acceptance in trade of the business name. Both requirements are not proven by the Complainant with regard to the wholesale of wines and import of delicatessen and wine. \r\n\r\n2.4 With regard to the development and distribution of software, sales in general, internet services, medical consultancy and solutions the name “Vinos” might be distinctive, however, the scope of non-registered rights, such as the right in a business name under sec. 5 para 2 German Trademark Act, are often contentious between the parties and are therefore subject to taking evidence. Therefore, in the opinion of this Panel, a Complainant must build a strong case in order to successfully rely on a non-registered right. This requires at least that the material the complainant relies on is presented in the language of the proceeding in order to guarantee that the respondent is treated fairly and can respond properly with regard to the alleged non-registered right. These minimum requirements are not met by the Complaint since none of the documents the Complainant relies on in order to prove a right in a business name in Germany has been presented with an English translation. Paragraph A.3(c) ADR Rules states moreover that all documents shall be made in the language of the ADR Proceeding. The Panel may disregard documents submitted in other languages than the language of the ADR Proceeding without requesting their translation.\r\n\r\n3. Following the above said, the Panel held, that the Complainant did not show a right in the sign “Vinos”. In the case at issue the first-come-first-served-principle already set out in the EC Regulation 874\/2004 is therefore applicable and decisive; thus the Panel decides not to grant the remedy requested by the Complainant.",
    "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": "2007-02-26 00:00:00",
    "informal_english_translation": "For making out a successful case the Complainant has to prove that \r\n(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law AND; EITHER\r\n(ii) The domain name has been registered by the Respondent without rights or legitimate interest in the name; OR\r\n(iii) The domain name has been registered or is being used in bad faith.\r\n\r\nIn the case at issue the Complainant failed to show a right in the domain name <vinos> which is recognized or established by national law of a Member State and\/or Comunity law.\r\nTherefore the first-come-first-served principle is applicable and the Complaint must be denied because the Respondent registered the domain name at issue first.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}