{
    "case_number": "CAC-ADREU-004204",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "1. ALLOCATION OF THE DISPUTED DOMAIN NAME\r\n\r\n1.1. The Département des Hauts de Seine (“the Complainant” - Panel’s remark: The official designation is “département des Hauts-de-Seine”) applied for the domain name 92.eu on April 6, 2006. EURid rejected this application, on the grounds that the name had previously been allocated to Tempus Enterprises Ltd (“the Respondent”), which had applied for it on February 7, 2006. \r\n\r\n1.2. The Complainant initiated the ADR proceeding number 3928 against EURid before the ADR Center for .eu attached to the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (“the Court”), which it abandoned subsequently to the disclosure of the documentary evidence on the basis of which the name had been granted to the Respondent.\r\n\r\n\r\n2. HISTORY OF THE ADR PROCEEDING\r\n\r\n2.1. The Complainant launched this ADR proceeding, which formally commenced on March 26, 2007. Pursuant to Article A 4 (b) of the ADR Rules, the Complainant twice requested that the proceeding be suspended: Until June 4, 2007, first, and then until September 30. The Court accepted the first request, and granted a suspension until June 4, 2007. The term for submitting the Response expired on June 20, 2007.\r\n\r\n2.2. The Respondent communicated several times with the Court, but did not submit a response. On June 21, the Respondent was properly notified of its default.\r\n\r\n2.3. On June 27, 2007, this Panel was duly appointed.",
    "other_legal_proceedings": "The Complainant initiated ADR proceeding 3928 against EURid, to be provided with the documentary evidence sent by the Respondent to the validation agent during the sunrise period. The Complainant then decided to terminate said ADR proceeding and to initiate another one against the domain name holder.",
    "discussion_and_findings": "Pursuant to Article B 10 (a) of the ADR Rules, the Panel may consider an absence of response as an acceptance of the Complaint. Although no response was filed, the Panel will nevertheless examine whether EC Regulation 874\/2004 applies to the case, and prior to this whether the pieces of evidence brought by the Complainant are admissible.\r\n\r\n5. ADMISSIBILITY OF EVIDENCE\r\n\r\n5.1. The Complainant attached 30 annexes to its Complaint.\r\nThe Complainant copied and pasted into Microsoft Word files:\r\n-\tExcerpts from a July 10, 1964 French law and the General Code of Local Communities (Annexes 3 and 5)\r\n-\tTwo Wikipedia articles (Annexes 4 and 26)\r\n-\tCopies of previous decisions from this Court (Annexes 15, 16, 17, 20 and 24)\r\n-\tSearch results from Google (Annex 6)\r\n-\tScreenshots, or extracts of contents, of websites run by third parties (Annexes 7, 8, 9, 10, 14, 21, 22 and 23)\r\n-\tSearch results made in the .eu Whois (Annexes 18 and 19)\r\n-\tAn article from the BBC News website (Annex 27)\r\n-\tSearch results from IciMarques, the online version of the French trademark registry (Annex 28)\r\n\r\n5.2. The fact that the Complainant copied text into MS Word documents is problematic. Such documents can be edited very easily. This is also true of screenshots, which can be edited too.\r\nThe Panel cannot be sure that all the documents are accurate, except for the French statutes (Annexes 3 and 5) – as the Panel may check whether the submitted files correctly reflect French Law – and for the ADR decisions (Annexes 15, 16, 17, 20 and 24) – as the Panel may refer to the official version of these decisions, or compare with annexes thereto.\r\n\r\n5.3. The Panel could have checked whether the Wikipedia articles copied in Annexes 4 and 26 are the exact copy of the online version. But collaborative websites with permissive edits have little probative value. \"[A]nyone can alter the content of Wikipedia at any time, casting doubt on the validity of the information contained therein\", the International Trademark Association wrote in a June 23, 2006 letter (published at shapeblog.com\/Beresford Wikipedia.pdf).\r\nA Wikipedia article cannot be seen as reliable information in proceedings, as it can be manipulated before the proceedings, to serve the interests of a party (see, for an example a harsh criticism of the reliance on Wikipedia articles, in a decision of the U.S. Court of Federal Claims: Campbell v. Secretary of Health and Human Services, 69 Fed.Cl. 775, No. 02-554 V, February 14, 2006). \r\n\r\n5.4. Anyhow, the Panel is not obliged to check whether the content copied in the annexes cited above is correct (see ADR Rules, B 7 (a)).\r\nWould it want to do so, it would not necessarily find this content online. Websites happen to be inaccessible, and pages may have expired permanently.\r\nWould it want to do so, it would not necessarily find the same content online. There are websites which home page, or content, depends on the IP address of the internet users who visit them. As IP addresses usually depend on a physical location, the users may find customized pages which are written in the language spoken in the country they are based in, or content suitable to their needs.\r\nThe Panel expressly refers to a recent judgment of the EC court of first instance, in which the court found it was not able to review the validity of a decision based on “internet links which [were] inaccessible at the time of the Court’s investigation of the case”, or on “accessible links whose content has changed or might have changed” since that decision (February 7, 2007, case T-317\/05, Kustom Musical Amplification, Inc. v. Office for Harmonisation in the Internal Market, at § 58 and 59).\r\n\r\n5.5. Content change matters are particularly relevant as regards search results. In Annex 6, Complainant copied the first 30 results returned by Google after a search on “92”. When searching on Google, display order of the results may vary depending on the version used (searches made on google.de and google.co.uk, for example, may either produce different results, or results displayed in a different order), possibly on the IP address, on the preferences (if any) saved by the user, and maybe other parameters.\r\n\r\n5.6. The Panel also points out that it is unable to check with accuracy the date the content was copied in the documents. The date may be of relevance when it comes to examining whether legal conditions are met to order the transfer of the name sought by the Complainant.\r\n\r\n5.7. Nevertheless, Complainant warranted that all information provided was complete and accurate, pursuant to article B 1 (b) (15) of the ADR Rules. Although the Complainant gave such warranty, the Panel is still empowered to examining the evidence. Pursuant to article B 7 (d) of the ADR Rules, “the Panel shall determine in its sole discretion the admissibility, relevance, materiality and weight of the evidence”. There is no contradiction between these two provisions.\r\n\r\n5.8. The fact that Complainant gave such a warranty does not transform the above cited annexes into useful or relevant evidence, for the reasons explained above. The Panel will refer to some of these weak annexes, but the more they are questionable, the more the Panel will regard them with circumspection.\r\n\r\n6. DOES THE COMPLAINANT HAVE RIGHTS ON THE SIGN 92?\r\n\r\nUnder Article 21.1 of EC Regulation 874\/2004, “[a] registered domain name shall be subject to revocation (…) where that name is identical or confusingly similar to a name in respect of which a right is recognised or established by national and\/or Community law, such as the rights mentioned in Article 10(1)”, and where it “has been registered by its holder without rights or legitimate interest in the name” or “has been registered or is being used in bad faith”.\r\nBefore examining the issue of identity or confusion, the Panel must find first whether the Complainant has a right on the sign 92, and then whether said right is recognised or established by French law or Community law.\r\n\r\n6.1. Territorial communities of the French State are referred to in article 72 of the French Constitution. Pursuant to this article, these Territorial communities may take decisions in all matters arising under powers that can best be exercised at their level. In the conditions provided for by statute, these communities shall be self-governing through elected councils and shall have power to make regulations for matters coming within their jurisdiction.\r\n“Départements” (administrative regions) are at the second level of territorial communities. The Complainant is one of these Départements. Without any doubt, the Complainant is a public body under article 10.1 of EC Regulation 874\/2004, which defines them as “institutions and bodies of the Community, national and local governments, governmental bodies, authorities, organisations and bodies governed by public law, and international and intergovernmental organisations”.\r\n\r\n6.2. During the period of phased registration described in article 10, public bodies were able to register “the complete name of the public body or the acronym that is generally used”, and public bodies that are responsible for governing a particular geographic territory could also register “the complete name of the territory for which they are responsible, and the name under which the territory is commonly known”.\r\nThe Panel emphasizes that this was only an option, which was provided for during the sole period of phased registration. This provision distinguishes between “holder of prior rights” and “public bodies”, and does not grant to public bodies any right on “the name under which the territory is commonly known”.\r\nPublic bodies being legal persons, they also could, during the same phased registration period, register names on which they hold prior rights, such as “national and community trademarks, geographical indications or designations of origin, and, in as far as they are 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” (article 10.1).\r\n\r\n6.3. Under the ADR Rules, the Complainant must “[s]pecify the names in respect of which a right is recognized or established by the national law of a Member State and\/or Community law” and, for each name, “describe exactly the type of right(s) claimed, specify the law or law(s) as well as the conditions under which the right is recognized and\/or established” (Article B 1 (b) (9)).\r\n\r\n6.3.1. The Complainant claims it is entitled to protection of the 92 sign relying alternately on its alleged use of this sign as a public body, or on its holding of trademark rights thereon, or, as it mentions once, on its use of the sign as a logo. It fails however to demonstrate clearly which of these rights it claims.\r\n\r\n6.3.2. As the Complainant itself states, “[t]he number 92 is commonly used to designate the Département des Hauts de Seine by the Complainant himself and by the public”. The fact that this number is “commonly” used does not demonstrate that the Complainant has rights on it.\r\nIn its Complaint, the Complainant gives examples of legal persons which use the number 92. They use it to refer to their place of business, as a metonymy to designate a geographical territory, not an administrative territory. They do not use 92 to refer to the public body which has jurisdiction in this geographical territory, i.e. to refer to the Complainant.\r\n\r\n6.3.3. The Complainant states that it “communicates under the number “92””, and then adds that it uses this number “in association with other names”. The Complainant states its own three trademarks (92 INITIATIVE, 92 ENTREPRENDRE, CG 92), none of which consist of the number 92 alone. The newspapers published by the Complainant bear the name “LE 92” and “92 EXPRESS”, which is another evidence that the Complainant does not use the number 92 alone (furthermore, as for the second newspaper, there is no evidence that it is not published by a separate entity than the Complainant).\r\nIt does not appear from the evidence that the Complainant uses the sign 92 alone.\r\n\r\n6.3.4. The Complainant states it “has created a specific logo”, and adds that “[t]his number\/logo is mentioned on its headed paper – used for instance for 92.eu application – and on its website www.hauts-de-seine.net”.\r\nAlthough this logo is said to appear on the header of the Complainant’s letters, there is only one evidence of this, which is… the letter sent to apply for the disputed domain name! The header shows that the full name of the Complainant, “Conseil Général des Hauts-de-Seine”, appears above the logo, in a same field.\r\nFrom the screenshot of the homepage of Complainant’s website, it appears that the logo does not only consist of the number 92. The number overhangs the words “HAUTS DE SEINE”, which are written in the same colour as the number, and in the space delimited by the size of the number (the distance from the first letter to the last one is exactly the same as the distance from the first figure to the last one). Together, the number and the words form a square.\r\nIt appears that this logo does not consist of the number 92 alone, but of this number combined with the name of the Complainant. \r\n\r\n6.3.5. The Panel also observes that the Complainant mentions it has a website named “hauts-de-seine.net”, and thus does not use the number 92 in its electronic sign.\r\n\r\n6.3.6. The Complainant indicates that cars registered in the administrative region which the Complainant governs all have a plate ending with the number 92. This does not prove at all that the Complainant uses this number. It only reflects that it is compulsory for cars to have plates mentioning an administrative number which indicates where they are administratively registered (article R 317-8 of the French Code de la Route).\r\nThe fact that such an administrative obligation exists contributes to the common use of the number 92.\r\nBy these French administrative rules, Départements are given a number for policing purposes; These administrative rules do not grant rights on these numbers.\r\nThe Panel also points out that the Département des Hauts-de-Seine was created in 1964, whereas the use of plates ending with a two figure number dates back to a “circulaire interministérielle” of March 11, 1950.\r\n\r\n6.4. For all these reasons, the Panel is not satisfied that the Complainant proved it has on the sign 92 a right which is recognised or established, as required by article 21.1 of EC Regulation 874\/2004 and Article B 1 (b) (9) of the ADR Rules.\r\nAbsent this condition, the disputed domain name cannot be subject to revocation.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the Complaint be denied.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-07-20 00:00:00",
    "informal_english_translation": "The Complainant is the Département des Hauts de Seine, a French public body. The disputed domain name is 92.eu.\r\nThe number 92 is used to designate the geographical territory in which the Complainant has jurisdiction. The Complainant fails to prove this number designates it as a public body and that it has a right on it.\r\nThe Complainant asserts rights on three trademarks which include the number 92. These trademarks are composed of this number and a word. The Complainant cannot allege it has trademark rights on the number 92 alone.\r\nThe Complainant fails to prove it has rights on a logo composed exclusively of the number 92.\r\nUnder Article 21.1 of EC Regulation 874\/2004, “[a] registered domain name shall be subject to revocation (…) where that name is identical or confusingly similar to a name in respect of which a right is recognised or established by national and\/or Community law”. Article B 1 (b) (9) of the ADR Rules states that the Complainant must “[s]pecify the names in respect of which a right is recognized or established by the national law of a Member State and\/or Community law” and, for each name, “describe exactly the type of right(s) claimed, specify the law or law(s) as well as the conditions under which the right is recognized and\/or established”.\r\nThe Panel finds the Complainant failed in demonstrating it has a right on the 92 sign and that said right is recognised or established by French law or Community law.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}