{
    "case_number": "CAC-ADREU-004291",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant applied for the domain Fondy on April 6, 2006. The Complainant submitted documentary evidence on April 21, 2006, which is before the May 16, 2006 deadline. \r\n\r\nBased on the documentary evidence received within the deadline, the validation found that the complainant did not sufficiently demonstrate that it was the holder of a prior right on the dame FONDY. \r\n\r\nBased on these findings, the Respondent rejected the Complainants application. The Respondent informed the Complainant about the rejection on October 31, 2006.",
    "other_legal_proceedings": "None that is Panel aware of",
    "discussion_and_findings": "The language of the present proceedings is English. According to Art. A 3 (c) ADR Rules, “all documents including communications made as part of the ADR Proceeding 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”. The Complainant posted five documents as Annex to his Complaint written in Czech, without attaching a translation in English. By doing so, it disregarded the requirement set forth in Art. A 3 (c) ADR Rules, which is the reason why this Panel will not take into consideration any of the documents aforementioned [see also case 1542 (MEGAMAN)].\r\n\r\nPursuant to Art. B 8 of ADR Rules, the Panel may request or admit, in its sole discretion, further statements or documents from either of the parties. In the present case the complainant filed two additional documents by means of non standard communication; in the first one he stated that the decisions in ADR 04281 (DOTACE), ADR 4289 (AKCIE), ADR 4292 (ZAJEZDY) and ADR 04293 (KURZY), issued in similar cases, are incorrect. In the second one he stated that On 7 June 2007, in a similar case, HRY (ADR 4284), the Complaint was accepted.\r\nGiven the fact that the Respondent had had sufficient time in order to arrange for a rebuttal, even though it did not make use of the above, admitting the additional pleadings of the Complainant does not contravene the principle of equal treatment of the parties involved. For this reason this Panel shall take into account the contentions included in the pleadings aforementioned, making use of the discretionary powers granted pursuant to Art. B 8 ADR Rules.\r\nThe procedure followed for the registration of company names during the so called Sunrise Period (chapter 4, phased registration according to Art. 10 et seq. of Reg. 874\/2004) is of a similar nature to any other “prior rights” included in the above provision. The principles of the process for phased registration are stipulated in Art. 12 Reg. 874\/2004. This pattern was obligatory until the 6th of April 2006 [for more details see Nolan \/ Mc Mahon, EverCloserUnion.eu, CRi 2006, p. 17 et seq.]\r\nPursuant  to Art. 14.1 “all claims for prior rights under Article 10(1) and (2) must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists”. Further on, Art. 14.4 states that “every applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. The documentary evidence shall be submitted to a validation agent indicated by the Registry. The applicant shall submit the evidence in such a way that it shall be received by the validation agent within forty days from the submission of the application for the domain name”.\r\nThe particular prerequisites of any application for a .eu domain name during the Sunrise Period are included in the Sunrise Rules, whose object and scope was “to ensure proper, fair, technically sound administration of the Phased Registration Period and set out the terms of registration, including the basic rules and procedures applicable to: (i) Applicants that, via a Registrar, file an Application, (v) the Validation Agents, when examining Documentary Evidence; (vi) the Registry, when deciding whether or not to register a Domain Name; (vii) Panellist(s) deciding on a Complaint against a decision of the Registry to register or not to register a Domain Name”.\r\nOf significant importance in this respect is chapter V of the Sunrise Rules, which deals with the validation of prior rights. Two provisions are crucial for the present case, namely Sections 12 and 16. \r\n\r\nAccording to Section 12, “Unless otherwise provided under Sections 13 to 18 of these Sunrise Rules, the Applicant must submit Documentary Evidence containing\r\n(i) an affidavit signed by a competent authority, legal practitioner or professional representative declaring that the type of Prior Right claimed by the Applicant is protected under the laws of the relevant member state, including a. references to the relevant legal provisions, scholarly works and court decisions and b. the conditions required for such protection; and \r\n\r\n(ii) proof that the complete name for which a Prior Right is claimed meets all of the conditions set forth in such laws, including the relevant scholarly works and court decisions, and that such name is protected by the relevant Prior Right claimed”. \r\n\r\nSection 16.4 sets forth the requirements for the documentary evidence related to company names as follows: “Unless otherwise provided in Annex 1 hereto, it shall be sufficient to \r\nsubmit the following Documentary Evidence for company names referred to under Section 16(1): \r\npublic.\r\n(i) an extract from the relevant companies or commercial register; \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(iii) a signed declaration (e.g. a certificate of good standing) from an official companies or commercial register, a competent public authority or a notary\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 contains no opposite provisions to Art. 16.4. \r\n\r\nLast but not least, mention should be made to Section 11.3 Sunrise Rules, where it is clearly stated that “the Applicant must be the holder (or licensee, where applicable) of the Prior Right claimed no later than the date on which the Application is received by the Registry, on which date the Prior Right must be valid, which means that it must be in full force and effect”.\r\nChapter VI of the Sunrise Rules covers the issue of the examination process. Pursuant to Section 21.2 “the 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 (including the Documentary Evidence received electronically, where applicable) and in accordance with the provisions of these Sunrise Rules”. \r\n\r\n\r\nFinally, with regard to the scope of the present proceedings, mention needs to be made to Art. 22.11 Reg. 874\/2004, which stipulates that “in the case of a procedure against the Registry, the ADR panel shall decide whether a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733\/2002”.\r\n\r\nBearing in mind the provisions aforementioned, the Panel will now proceed to the examination of the facts of the case at hand. \r\nI. The Complainant’s sole piece of documentary evidence was a certificate dated from April the 7th, issued from the Czech Ministry of the Interior. This certificate has the following wording: \r\nMinistry of the Interior \r\n#Address# \r\n#file number# In Prague, 7 April, 2006 \r\n\r\nCertificate\r\nThe Ministry of the Interior hereby certifies that on 29 March 2006, a proposal for recording of \r\nZAKONY \r\nHaving its seat: #address#, in accordance with Art. 9a of the Act No. 83\/1990 Coll. on association of citizens, wording of the Act No. 300.1990 Coll. \r\n\r\nwas delivered to the Ministry of the Interior. \r\n\r\nThe recording was made under the file number: #file number#, identification number: #id no#. \r\n\r\nTaking into consideration that the Validation Agent conducts a prima facie review of documentary evidence, this Panel fails to detect any potential negligent behavior coming from his side. The document clearly mentions twice the word “recording”. In particular, the Panel understands that a\r\nproposal for recording was filed on March the 29th 2006, and that this (proposal or petition or application) for recording received a file and identification number. What is missing from this certificate is an explicit reference to the word “company”, which would give rise to a different approach of the subject matter. However, since such a word is not contained in the (translated) document, this Panel sees no wrongdoing coming from the Validation Agent.\r\nIn his additional pleadings dated from 14.5.2007, the Complainant underlines the importance of Art. 9a of the Act No. 83\/1990 Coll. on association of citizens, wording of the Act No. 300.1990 Coll., and attaches a translated copy of a letter issued by the Ministry of the Interior – Department of Association, dated from 7.12.2006. This letter acknowledges that:\r\n\r\n“Pursuant to the stipulations of Section 9a of Act No. 83\/1990, Coll., on association of citizens, as amended by Act 300\/1990, Coll., a trade-union organization and an employer organization become legal entities as of the day following the day on which the competent ministry had received the application for its incorporation. \r\nIn order to document this, the Ministry of the Interior issues a certificate of the application for incorporation indicating other identification data such as name, registered office, reference and identification numbers of a trade-union organization or an employer organization”.\r\nEven that being the case, there are at least two very important factors that lead this Panel to uphold the Registry’s decision to reject the application. \r\n\r\nThe Complainant did not specify the meaning and the importance of this piece of national legislation to the Validation Agent during the 40 days period. Expecting from the Agent to proceed to a profound research regarding the wording of Section 9a of Act No. 83\/1990 during the Sunrise Period would contravene the basic elements of the whole registration and validation system. It is the applicant himself who bears the onus of proving his prior right, by delivering clear-cut evidence [see cases 1518 (VANHOUTEN), 1542 (MEGAMAN), 1664 (ACCORD, TAARUP), 1943 (METZLER), 2050 (AUTOMOTOGAZETA etc), 2094 (DEBORAH etc.), 2119 (PHOENIX-X-RAY), 2138 (NOVUM), 2268 (EBSOFT), 2316 (MEDTRONIC), 2335 (FELA), 2412 (SCWP), 2564 (LINAGORA, TOOLINUX), 3503 (COBUMO etc.), where a similar approach is supported]. This was not the case in the present proceedings.\r\nThe letter presented before this Panel attached to the Complainant’s additional pleadings was not delivered to the Validation Agent as supporting document of his documentary evidence. Hence, this document is completely inadequate in the course of these proceedings, because the powers of this Panel are bound by Art. 22.11 Public Policy Rules, which means that the Panel cannot review the decision of the Registry by taking into consideration documents, which were not brought into its attention, when dealing with the specific application. A large number of decisions have already established a case law rule under .eu ADR proceedings, namely that new evidence presented for the first time before the Panel, i.e. not within the 40 days period, as required by Art. 14 Reg. 874\/2004, are to be held inadmissible [see cases 1518 (VANHOUTEN), 1943 (METZLER), 2013 (NINTENDO), 2022 (ETAS), 2055 (ABOUTLEARNING, 4MAT), 2087 (PLEXTOR, PLEXTALK), 2094 (DEBORAH etc.), 2119 (PHOENIX-X-RAY), 2124 (EXPOSIUM), 2190 (WORLEE)]. \r\n\r\nAs judicated many times, the burden of proof to demonstrate that the Complainant is the holder of claimed prior right was with the Complainant.\r\n\r\nDuring the Sunrise Rules, the first applicant in the line does not have an unconditional right to the domain name, but only has an opportunity to try to clearly demonstrate that it is the holder of a prior right.\r\nAccording to Section 21.2 of the Sunrise Rules, the 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.\r\nThis Panel refers to the case 4284 (HRY), where the Panel came to the adverse conclusion and accepted the Complaint. The difference in this case is, that the panelist decided to perform his own research and through his own investigation confirmed certain details which the Complainant have not proven before the deadline. This Panel considers such approach as inappropriate and emphasises that any previous decision is not legally binding for its conclusions\r\nFinally, this Panel refers to 9 decisions of the CAC, which are of striking resemblance to the present case. These are the following: 4281 (DOTACE); 4283 (HOTELY); 4286 (DOVOLENÁ); 4287 (UBYTOVÁNÍ); 4288 (MAPY); 4289 (AKCIE); 4290 (ZÁKONY); 4292 (ZAJEZDY), and 4293 (KURZY). All of them were filed by Mr. Jan Hřebíček, who acted as the authorized representative of the complainants. The facts in those cases are almost identical to the present one, and the legal issues dealt with are exactly the same. None of the above cases declined from the findings of the present decision.\r\n\r\nTaking in consideration all above mentioned the Panel finds that the Respondent correctly and in line with all applicable regulation decided to reject the Complainants application.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\nthe Complaint is Denied",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-07-24 00:00:00",
    "informal_english_translation": "The Complainant asked to annul Respondent’s decision on the rejection of the Complainant’s application for the domain name fondy.cz and order that Respondent grant this application to the Complainant.\r\n\r\nThe case is about the requirements for sufficient documentary evidence in connection with a domain name application filed within the second part of the phased registration period and based on “Company names, Trade Names and Business Identifiers” in the Czech Republic. \r\n\r\nThe Complainant had filed as documentary evidence a Certificate from the Czech Ministry of the Interior confirming that an application for incorporation of an employer organization had been filed with and received by said Ministry. The Certificate further referred to Section 9a of Czech Act No. 83\/1990, Coll. on association of citizens. \r\n\r\nThe Registry had rejected the application as said documentary evidence did not demonstrate that the Complainant was the holder of the claimed and valid prior right on the Domain Name. \r\n\r\nThe latter letter from the Ministry of Interior attached to the Complaint clarifying the registration process of an employer organization is not admissible as documentary evidence as it was not included in the documentary evidence filed with the validation agent within the 40-day period.  \r\n\r\nThe Validation Agent is not obliged to conduct its own investigations into the circumstances of the Application, the Prior Right claimed and the Documentary Evidence produced except of “PRIMA FACIE” review. \r\n \r\nDuring the Sunrise Rules, the first applicant in the line does not have an unconditional right to the domain name, but only has an opportunity to try to clearly demonstrate that it is the holder of a prior right. \r\n\r\nThe Panel ruled that the Complainant’s documentary evidence had shown only that by the time the application was received it had made a proposal for the incorporation of the Complainant and not that the employer organization was incorporated and fully in force, and how it is protected by national law. This was insufficient to establish a prior right for the purposes of a sunrise application and the Complaint was denied.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}