{
    "case_number": "CAC-ADREU-005174",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant, Sepracor, Inc., is a research based pharmaceutical company located in Marlborough, Massachusetts, USA. The Complainant’s business is dedicated to treating and preventing human disease by discovering, developing, and commercialising innovative pharmaceutical products.  \r\n\r\nThe Respondent is Adil Akkus, an individual based in the UK. \r\n\r\nThe Respondent registered the domain name ‘lunesta.eu’ (the ‘Domain Name’) on 16 May 2008.\r\n\r\nThe Complainant filed its Complaint with the Czech Arbitration Court on 28 August 2008.\r\n\r\nOn 4 September 2008, the case administrator at the Czech Arbitration Court sent a notification to the Complainant asking it to address a number of minor deficiencies in its Complaint. These deficiencies were then swiftly addressed by the Complainant. \r\n\r\nOn 8 September 2008, ADR proceedings were formally commenced and a notification of such was sent to the Respondent.\r\n\r\nOn 19 September 2008, a non standard communication was submitted by the Respondent. This was followed up by a non standard communication submitted by the Complainant on 9 October 2008 which attached email correspondence between the Complainant’s representative and the Respondent. \r\n\r\nOn 15 October 2008, a ‘Response’ form was submitted through the ADR.eu online platform. The content of this Response consisted of a simple message directed to the Complainant’s representative. It appears, however, that this message was generated by the Respondent’s Registrar, and not by the Respondent or on the Respondent’s behalf. \r\n\r\nThe Czech Arbitration Court issued a Notification of the Respondent’s Default on 11 November 2008, as the ‘Response’ filed was deficient in a number of respects. \r\n\r\nOn 14 November 2008, the Complainant filed a non standard communication attaching some brief email correspondence between the Complainant’s representative and the Respondent’s registrar.\r\n\r\nOn 20 November 2008, having received a Statement of Acceptance and Declaration of Impartiality, the Czech Arbitration Court appointed Steve Palmer as the Panel in these ADR proceedings.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings relating to the disputed domain name.",
    "discussion_and_findings": "*** Preliminary issue*** \r\n \r\nAs a preliminary issue, and having regard to paragraphs B.7(b), B.7(d) and B.8 of the ADR Rules, the Panel has decided to admit and consider the contents of the following non-standard communications submitted by the two parties in these proceedings: \r\n\r\n- the Respondent’s sole non-standard communication (filed 19 September 2008). This document appears to have been filed in direct response to the Complaint and is of relevance to the case.  In the Panel’s view, it would be unfair not to take notice of this non-standard communication; and  \r\n\r\n- The Complainant’s non-standard communication (filed 9 October 2008) attaches email correspondence between the Complainant’s representative and the Respondent. This correspondence follows on from the Respondent’s non-standard communication and is of relevance to the case. In the circumstances, it would be unfair not to take notice of this email correspondence. Further, as the email correspondence was produced after the (amended) Complaint was filed by the Complainant, it should be allowed on this basis that the Complainant could not reasonably have known the existence or relevance of the further material when it made its primary submissions. \r\n\r\nHowever, the Panel has decided it shall not consider the contents of the defective Response (filed 15 October 2008), nor the contents of the email correspondence attached to the Complainant’s non standard communication of 14 November 2008. The reason being that these documents relate to comments made by the Respondent’s Registrar, and not by the Respondent himself (nor on the Respondent’s behalf). \r\n\r\n*** Identical or confusingly similar Domain Name *** \r\n \r\nThe first requirement of Art 21(1) Public Policy Rules is, in the Panel’s view, satisfied. \r\n\r\nThe Domain Name is identical to the Complainant’s CTM which is registered for the word mark LUNESTA. The ‘.eu’ suffix serves no relevant distinguishing purpose. As such, the Panel does not need to consider whether or not the Domain Name is identical or confusingly similar to the myriad of other rights which were claimed and\/or put forward in evidence by the Complainant’s representatives. \r\n\r\n*** No rights or legitimate interest *** \r\n \r\nThe Domain Name shall be subject to revocation if it has been registered by the holder without rights or legitimate interest in the name (Art 21(1)(a) Public Policy Rules).\r\n\r\nOn the evidence made available to (and accepted by) the Panel, it appears to the Panel that the holder of the Domain Name does not have any rights or legitimate interest to the Domain Name.  Art 21(2) Public Policy Rules sets out a list of factors which may demonstrate a legitimate interest (the mirror provisions found at paragraph B.11(e) of the ADR Rules). It is not necessary in this case for the Panel to go through the list of factors in detail (save to say that it is clear that none of those factors are present in this case) as the Respondent, in his non standard communication of 19 September 2008, expressly disclaims any right of ownership and\/or ‘claim over’ the Domain Name. Further, whilst it is true that the Respondent then claimed that the Domain Name was in fact registered by one of his ‘friends’, the Respondent failed to elaborate any further on this point; other than to offer, on behalf of this so-called friend, to sell the Domain Name to the Complainant for a nominal sum. \r\n\r\nThe Panel therefore concludes that, on the balance of probabilities, the Domain Name was registered by its holder without rights or legitimate interest in the name. The registration is therefore speculative or abusive, and should be subject to revocation under Art 21(1)(a) Public Policy Rules.  \r\n\r\n***Bad faith*** \r\n \r\nIn view of the Panel’s finding under Art 21(1)(a), it is not necessary to consider whether the Domain Name is also subject to revocation under Art 21(1)(b) Public Policy Rules (which requires a finding that the Domain Name was registered or is being used in bad faith).\r\n\r\n***Transfer or revocation*** \r\n\r\nArticle 22(11) Public Policy Rules provides that the Domain Name shall be transferred to the Complainant if the Complainant applies and satisfies the general eligibility requirements. \r\n\r\nParagraph B.1(b)(12) of the ADR Rules states that ‘…if the Complainant requests transfer of the domain name, [the Complainant shall] provide evidence that the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b)’ of the .eu Regulation. \r\n\r\nParagraph B.11(b) of the ADR Rules states that the ‘…remedies available pursuant to an ADR Proceeding …shall be limited to the revocation of the disputed domain name(s) or, if the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b)… [of the .eu Regulation], the transfer of the disputed domain name(s) to the Complainant’. \r\n\r\nIt is therefore clear from this that the Panel can only transfer the Domain Name to the Complainant, and only where the Complainant satisfies the general eligibility criteria as set out in 4(2) of the .eu Regulation. In this regard, Article 4(2) of the .eu Regulation states that the ‘…Registry shall… (b) register domain names in the .eu TLD through any accredited .eu Registrar requested by any: (i) undertaking having its registered office, central administration or principal place of business within the Community, or (ii) organisation established within the Community without prejudice to the application of national law, or (iii) natural person resident within the Community…’.\r\n\r\nThe Complainant requests transfer of the Domain Name to its Irish subsidiary - on the basis that it satisfies the general eligibility requirements of Article 4(2)(b) of the .eu Regulation. This request cannot be accepted: Article 22(11) of the Public Policy Rules provides that the domain name shall be transferred to the Complainant if the Complainant applies and satisfies the general eligibility requirements. There is no provision for transferring the domain name to another legal entity, even if that entity is a subsidiary of the Complainant. The domain name must therefore be revoked.",
    "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 domain name LUNESTA be revoked",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2008-12-22 00:00:00",
    "informal_english_translation": "The Complainant owns a Community Trade Mark registration for LUNESTA in class 5. \r\n\r\nThe disputed Domain Name is not being used and the Respondent disclaims any right to the Domain Name.\r\n\r\nThe Complainant, a US company, requests transfer of the Domain Name to its Irish subsidiary.\r\n\r\nThe Panel finds that the Domain Name is identical to a name in which the Complainant has a right recognised by Community law, and that the Respondent has no right or legitimate interest in it. The registration is therefore speculative or abusive under Article 21 of the Public Policy Rules.\r\n\r\nHowever, as there is no provision to transfer the domain name to an entity other than a successful Complainant, and that the Complainant does not meet the eligibility requirements of Article 4(2)(b) of the .eu Regulation, the Domain Name must be revoked.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}