{ "case_number": "CAC-ADREU-003911", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Registrant of is a business (Amazing Solutions) based in the Netherlands which distributes software products within Europe. \r\n \r\nThe Registrant applied to register the domain name during the Sunrise Period on 7 February 2006 and provided documentary evidence on 10 March 2006. \r\n\r\nThe Complainant, BoxSentry Pty Limited, is an Australian company that manufactures electronic commerce products and has developed and owns anti-spam software sold under the mark 'BoxSentry'. It licences rights in its software and trademark to third parties, so that third parties can distribute and sell their software. \r\n\r\nOn 12 July 2004 the Complainant and the Registrant entered into a Reseller Agreement which granted certain rights to the Regisrant to resell the Complainant’s products using the BoxSentry mark within a defined territory. \r\n\r\nThe Reseller Agreement provides that the Reseller (the Registrant) must not use the Complainant’s trade marks in certain ways. \r\n \r\nBased on the documentary evidence received within the deadline, the validation agent found that the Registrant’s claimed prior rights were established and protected in the Netherlands. \r\n \r\nBased on these findings, the Respondent (EURid) accepted the Registrant’s application. \r\n\r\nThe Sunrise appeal period commenced on 20 October 2006.\r\n\r\nThe Complaint was first filed on 28 November 2006 and amended on 11 December 2006.", "other_legal_proceedings": "", "discussion_and_findings": "Procedural Points \r\n\r\nPursuant to 26.1 of the Sunrise Rules, an ADR proceeding against the Registry may be initiated within 40 days of a decision by the Registry. In the present case the Sunrise appeal period commenced on 20 October 2006. The Complaint was first filed on 28 November 2006 The Complaint was therefore submitted within the deadline and is admissible.\r\n\r\nSubstantive Points\r\n\r\nThe following discussion is largely based on Case no. 0012, , however the Panel also notes, and agrees with, the cases cited by the Respondent, in particular Cases no. 1867 and no. 3007 .\r\n\r\nActions by the Respondent\r\n\r\nThe principal obligations of the Registry regarding its decisions to register .eu domain names during phased registration are regulated by Art. 14 of the Public Policy Rules, and especially by the last paragraph of Article 14 which states that the Registry (EURid) shall register the domain name on a first-come-first-serve basis if it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in the Article 14.\r\n\r\nThe Panel finds that EURid acted in accordance with the specified procedures and that its decision was valid with respect to the finding of prior rights. The matter of the mistakes by the validation agent, and how they should be dealt with, will be discussed later.\r\n\r\nThe Complainant raises an additional issue, requesting that the registration be cancelled because of bad faith actions by the Registrant. \r\n\r\nArticle 3 (c) of the Public Policy Rules (Regulation (EC) No 874\/2004) states that each request for domain name registration shall include also “an affirmation by electronic means from the requesting party that to its knowledge the request for domain name registration is made in good faith and does not infringe any rights of a third party”. Article 3 of the Public Policy Rules then states that any material inaccuracy in the elements set out in the Article 3, including in paragraph (c), shall constitute a breach of the terms of registration.\r\n\r\nThe Public Policy Rules contain specific obligations of the Registry with respect to the breach of the terms of registration in Article 20. Article 20 provides that the Registry may revoke domain names without submitting the dispute to ADR, on various grounds that include the holder’s breach of the terms of registration under Article 3. Article 20 also specifies that the Registry shall lay down a procedure in accordance with which it will decide about the revocation of domain names on these grounds, which “shall include a notice to the domain name holder and shall afford him an opportunity to take appropriate measures”. This requirement is evidently intended to ensure a minimum procedural protection of the domain name holder.\r\n\r\nThe Panel considers that this procedure should not be circumvented by treating a potential breach of the terms of registration under article 3 of the Public Policy Rules as a decision of the Registry conflicting with them which may be challenged under their article 22(1)(b). Such an interpretation would conflict with the wording of article 22(1)(b), the purpose of article 20 and the structure of the Public Policy Rules.\r\n\r\nIf the Complainant had asked the Registry to revoke the disputed domain name under the procedure contained in Article 20, it might have been incumbent on the Registry to examine whether there was a material inaccuracy in the Registrant’s affirmation that the request for registration was made in good faith and did not infringe any third party rights. However, since the Registry has not been asked to take and has not taken any such decision, this issue does not arise.\r\n\r\nThe Registry simply and, in the Panel’s view correctly, upon notification of the findings by the validation agent that prior rights exist regarding the domain name that is first in line, has found that the Registrant has demonstrated a prior right in accordance with the procedure set out in article 14 of the Public Policy Rules, has accepted its application, and has registered the domain name on the first come, first served basis. \r\n\r\nThis Panel cannot, under the applicable procedural rules, join the Registrant to this proceeding. Thus, the Panel cannot ascertain whether or not the agreement put forth by the Complainant is still in force and is to be interpreted and applied as the Complainant contends. Nor can the Panel determine the rights of the Registrant fairly and in accordance with fundamental principles of law without affording it the opportunity of being heard.\r\n\r\nThese considerations emphasize the importance of adhering to the procedure provided by article 20 for addressing any breach of the terms of registration pursuant to article 3 of the Public Policy Rules.\r\n\r\nMistakes by the Validation Agent\r\n\r\nThe Respondent states that the validation agent committed some errors and that, absent such errors, it would not have accepted the Registrant’s application.\r\n\r\nAs stated above, this Panel cannot possibly take such statements into account, because it cannot join the Registrant to this proceeding and thus it cannot afford the Registrant a fair opportunity to be heard and to refute the Respondent’s arguments.\r\n\r\nIf EURid believes that the mistakes made by the validation agent are such that the registration should be cancelled, then it should invoke the provisions of Section 12 of the Registration Policy and of Article 20 of the Pubic Policy Rules, which provisions, as noted above, provide the opportunity for the Registrant to be heard and to challenge the decision to cancel the registration.", "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": "2007-02-06 00:00:00", "informal_english_translation": "The ADR Proceeding related to a Complaint challenging the decision of the Registry to register the disputed domain name, on the grounds that the application was in bad faith.\r\n\r\nThe Panel finds that challenges grounded on bad faith must be conducted in accordance with the specific procedure provided under Article 20 which was not invoked in this case. \r\n\r\nThe Panel dismisses the Complaint.", "decision_domains": [], "panelist": null, "panellists_text": null }