{
    "case_number": "CAC-ADREU-004293",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant applied for registration of the domain name kurzy.eu on 6 April 2006 under the phased registration (“Sunrise”) period.  The Complainant’s application relied upon a Prior Right to the name KURZY pursuant to article 10(1) of Commission Regulation EC number 874\/2004 (the “Regulation”), specifically a proposal, dated 22 March 2006, for the recording of a company which was to be called KURZY. \r\n \r\nThe Complainant’s application was rejected by the Respondent on the grounds that the documentary evidence provided was insufficient to demonstrate that, at the time the Complainant's application was made, the Complainant had been incorporated as a company so as to demonstrate Prior Rights in the domain name in accordance with section 16(4) of the Sunrise Rules.",
    "other_legal_proceedings": "",
    "discussion_and_findings": "PROCEDURAL ISSUES\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 contested decision was made on 5 January 2007 and the Complaint was submitted on 14 February 2007.  The Complaint was therefore submitted within the deadline and is admissible.\r\n\r\nPursuant to 8 of the ADR Rules, the Panel chooses to admit the Complainant’s Rebuttal, submitted as a non-standard communication.  For the reasons set out below, the Panel holds that it need not admit a Sur-rebuttal from the Respondent, since a Sur-rebuttal is not required to ensure the equality of treatment of 7(b) of the ADR Rules.\r\n\r\nSUBSTANTIVE ISSUES \r\n\r\nThe Panel agrees with the analysis and conclusions of the Respondent, EURid, and with the analysis of the Panel in the very similar case no. 04281 (DOTACE), and this despite the Complainant’s criticism of that decision.  This Panel can do no better than to paraphrase the Panel’s statements in the cited case. \r\n\r\nThe documentation submitted by the Complainant is a proposal for the recording of KURZY as a company.  It is dated 28 March 2006 and confirms that a proposal for recording KURZY as a company was delivered to the Czech Ministry of the Interior on 22 March 2006.\r\n\r\nAccording to the Complainant, under Czech law, the company was therefore legally in existence as of 23 March 2006, and no further proof of its legal existence can be produced.  Further, according to the Complainant, the Validation Agent, the Respondent, and this Panel, should be aware of that provision of Czech law.\r\n\r\nBut the Complainant misunderstands who bears the burden of proving, when submitting an application, that rights exist.  The Complainant correctly cites Article 14 of the Commission Regulation EC number 874\/2004 which requires all claims for Prior Rights under Article 10(1) and (2) to be “verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists”.\r\n\r\nBut he fails to understand the implications of that language.  The burden was on the Complainant to provide ALL the required evidence.  Section 16.4 of the Sunrise Rules provides that the documentary evidence for company names should be “(i) an extract from the relevant companies or commercial register; (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 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 public.”  Annex 1 of the Sunrise Rules does not provide for a specific exception to the above rule.\r\n\r\nThe Complainant provided none of the above, and states that it was not possible to provide any of the above.  In that case, the general provisions found in section 12.1 of the Sunrise Rules apply, and the Complainant should have provided “(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 (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.”  Annex 1 of the Sunrise Rules does not provide for a specific exception to the above general rule.\r\n\r\nIn other words, the Complainant should have included with the application, at a minimum, the letter of 6 December 2006 from the Czech Ministry of the Interior (which letter was attached to the Complaint and to the non-standard communication, but not to the original application), evidence that the Complainant is a “trade-union organization” or an “employer organization” (which appears to be a requirement under the cited law) and a legal opinion supporting the Complainant’s interpretation of the Czech law.\r\n\r\nNeither the Validation Agent, nor EURid, have any obligation to research national legislation in order to interpret documentary evidence.  Section 21.2 of the Sunrise Rules states that Prior Rights are to be assessed by the validation agents exclusively on the basis of a PRIMA FACIE review of the first set of documentary evidence received.\r\n\r\nIf the documentary evidence is not prima-facie crystal-clear, which is the case here, then the Complainant must suffer the consequences of not having provided sufficiently clear documentary evidence.\r\n\r\nAs the panel correctly said in case ADR 1886 (GBG): \"According to the Procedure laid out in the Regulation the relevant question is thus not whether the Complainant is the holder of a prior right, but whether the Complainant demonstrated to the validation agent that it is the holder of a prior right. If an applicant fails to submit all documents which show that it is the owner of a prior right the application must be rejected\".\r\n \r\nPrima facie, and even taking into account the second sentence cited by the Complainant in his non-standard communication, the documentary evidence submitted with the application merely confirms that a proposal to incorporate KURZY was filed and registered on 22 March 2006.\r\n \r\nIt was not for the validation agent to carry out further investigations to determine whether a proposal to incorporate a company under the name KURZY had been approved or was, in and of itself, sufficient.  It was the Complainant’s duty to provide sufficient documentation to make it obvious, prima facie, that the proposal was sufficient.\r\n \r\nBut he did not do this.  On 6 April 2006, the date on which the Complainant made the application for registration of the domain name, the Complainant submitted only evidence that he had submitted a proposal for recording of KURZY, and that that proposal had been duly received and registered.  There was no way for the Validation Agent or, subsequently, EURid to know that KURZY already had been or would be successfully incorporated.  That is, the documentary evidence submitted by the Complainant did not demonstrate, on its face and without requiring investigation into Czech law, that KURZY had been incorporated on 6 April 2006, the date on which the application for kurzy.eu was received by the Respondent.\r\n\r\nThat is, the application did not comply with Section 12.1 of the Sunrise Rules.\r\n\r\nTherefore, EURid acted correctly and the Complaint must be dismissed.",
    "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": "2007-05-17 00:00:00",
    "informal_english_translation": "The Complainant contends that the EURid’s rejection of the Complainant’s application for the domain name kurzy.eu was incorrect because it has submitted to EURid a Certificate which established that an application for the incorporation of KURZY as a company had been submitted to the Ministry of the Interior of the Czech Republic prior to the application for the domain name, that such application was the only evidence that could be provided under Czech law, and that, under Czech law, the application was automatically accepted and in force on the day following the application.\r\n\r\nHowever, when reviewing the application, the Validation Agent, and, subsequently, EURid, had no evidence showing that the Complainant had been incorporated as a company in the Czech Republic.  The documentary evidence provided with the application for the domain name showed, prima facie, only that the Complainant had filed a proposal for the recording (or incorporation) of the company and that that proposal had been duly registered.  The application did not include any affidavits, citations from legal works, or proof that all conditions stated in the relevant law had been met; such material should have been included pursuant to section 12.1 of the Sunrise Rules. . \r\n\r\nThus, the Complainant in this case had not satisfy its burden of providing sufficient documentary evidence, in accordance with sections 12.1 and 16.4 of the Sunrise Rules, to show that, at the time it made its Sunrise Application, it was the holder of a Prior Right which was in full force and effect.\r\n\r\nTherefore the Panel dismissed the Complaint.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}