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 (Czech Arbitration Court)
Panel Decision
§ B12 of the .eu Dispute Resolution Rules (ADR Rules)
Case No.: 04290 Time of Filing: 2007-04-04 15:09:11 Administrative Contact: Tereza Bartošková Complainant Name: ZÁKONY Complainant's Authorized Representative Name: Jan Hřebíček Respondent Name: EURid Respondent's Authorized Representative Name: Domain Name(s): ZAKONY Disputed decision(s) of EURid: #20322 Date(s) of disputed decision(s): 2007-01-05 Other Legal Proceedings
- 04283 HOTELY (which is a generic word meaning “hotels” in the Czech language);
- 04284 HRY (which is a generic word meaning “games” in the Czech language);
- 04286 DOVOLENA (which is a generic word meaning “holiday” in the Czech language);
- 04287 UBYTOVANI (which is a generic word meaning “accommodation” in the Czech language);
- 04288 MAPY (which is a generic word meaning “maps” in the Czech language);
- 04291 FONDY (which is a generic word meaning “funds” in the Czech language);
In four other cases a decision has been already published
- 04281 DOTACE (which is a generic word meaning “subsidies” in the Czech language);
- 04289 AKCIE (which is a generic word meaning “equities” in the Czech language);
- 04292 ZAJEZDY (which is a generic word meaning “excursions” in the Czech language); and
- 04293 KURZY (which is a generic word meaning “courses” in the Czech language).English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background Parties’ Contentions
1. According to the Czech Republic’s legislation, at the time of the application being filed the Complainant was a legal entity with full legal capacity,
2. The above-specified application for the domain name was filed during the Sunrise Period when, on the basis of a Prior Right, applications could also be filed by the applicants whose names correspond to the domain names they are applying for (the Complainant’s name is “ZÁKONY”) – Section 16(1) of .eu Sunrise Rules,
3. The above-specified application was filed with EURid duly and in time and included documentary evidence proving the existence of the Prior Right (authenticated copy of the Certificate from the Ministry of the Interior of the Czech Republic proving the Complainant’s incorporation, issued on 7 April 2006) – Section 16(4) (iii) of .eu Sunrise Rules,
4. Of all the applications for the domain name in question which demonstrated a Prior Right to the domain name, the above-specified application was the first one to arrive (“first come, first served principle”) – Section 22(2) of .eu Sunrise Rules.
At 2007-05-14 17:30:44 and 2007-05-29 10:21:07 the Complainant filed additional pleadings, the content of which will be discussed later in this decision.
EURid stated that the documentary evidence submitted by the Complainant consisted of a letter from the Czech Ministry of the Interior (dated 7 April 2006) showing that the Complainant delivered to the Ministry of the Interior a proposal for recording of a company that would be called “ZAKONY”. Based on the documentary evidence received within the deadline, the validation agent found that the Complainant did not sufficiently demonstrate that it was the holder of a prior right on the name ZAKONY, which was in full force and effect on the date of the application. Based on these findings, the Respondent rejected the Complainant's application.
EURid stresses out, that the Complainant agrees that the letter from the Czech Ministry of the Interior (dated 7 April 2006) shows that the Complainant delivered to the Ministry of the Interior a PROPOSAL FOR RECORDING of a company that would be called “ZAKONY” (or as translated by the Complainant in its Complaint “an application for the incorporation of ZAKONY”).
The Respondent noted for the complete information of this Panel, that the Complainant’s authorized representative (Mr Jan Hřebíček) filed identical ADR complaints on behalf of other similar Czech entities which applied for the registration of .eu domain names based on similar documentary evidence and for which the application was rejected by the Respondent based on the same grounds as in the present proceeding. One of these ADR cases has already been decided (ADR 04281 DOTACE, which is a generic word meaning “subsidies” in the Czech language). The Respondent refers to this decision in its totality as a highly relevant precedent, since it is based on an identical complaint, on similar facts and on similar documentary evidence.
The Respondent brought to the attention of the Panel nine other cases currently pending:
- 04283 HOTELY (which is a generic word meaning “hotels” in the Czech language);
- 04284 HRY (which is a generic word meaning “games” in the Czech language);
- 04286 DOVOLENA (which is a generic word meaning “holiday” in the Czech language);
- 04287 UBYTOVANI (which is a generic word meaning “accommodation” in the Czech language);
- 04288 MAPY (which is a generic word meaning “maps” in the Czech language);
- 04289 AKCIE (which is a generic word meaning “equities” in the Czech language);
- 04291 FONDY (which is a generic word meaning “funds” in the Czech language);
- 04292 ZAJEZDY (which is a generic word meaning “excursions” in the Czech language); and
- 04293 KURZY (which is a generic word meaning “courses” in the Czech language).
The Respondent also states that the burden of proof was with the Complainant to demonstrate that it is the holder of the claimed prior right. Article 10 (1) of the Regulation states that only the holders of prior rights shall be eligible to apply for and register domain names during the period of phased registration. Pursuant to article 14 of the Regulation, the applicant must submit documentary evidence showing that he or she is the holder of the prior right claimed on the name in question. Based on this documentary evidence, the validation agent shall examine whether the applicant has prior rights on the name. It is therefore of crucial importance that the Respondent is provided with all the documentary evidence necessary for it to assess if the applicant is indeed the holder of a prior right.
The burden of proof was therefore on the Complainant to substantiate that it was the holder of a valid prior right at the time of the application. A number of earlier CAC-decisions have been presented by the Respondent in this respect (cases 127 (BPW), 219 (ISL), 294 (COLT), 551 (VIVENDI), 984 (ISABELLA), 843 (STARFISH), 1931 (DIEHL, DIEHLCONTROLS)).
Special mention is made for case ADR 1886 (GBG), whose following passage is included in the Response: "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".
The Respondent concludes that the documentary evidence received did not demonstrate that the Complainant was the holder of a valid prior right at the time of the application, pursuant to Art. 10 (1) and 14 of the Regulation, and section 11.3 of the Sunrise Rules. The meaning of those provisions is that it is the Complainant who has to demonstrate that its claimed prior right was valid at the time of the application, which means that it must have been already at that time “in full force and effect".
The Respondent mentions also section 21.2 of the Sunrise Rules. The documentary evidence submitted by the Complainant consisted of a letter from the Czech Ministry of the Interior (dated 7 April 2006) stating that the Complainant delivered to the Ministry of the Interior a proposal for recording of a company that would be called “ZAKONY” (or as translated by the Complainant in its Complaint “an application for the incorporation of ZAKONY”).
For the complete information of the Panel, the Respondent prepared a translation of this letter, which was attached to the Response.
Consequently, the Respondent correctly decided to reject the Complainant's application.
The Respondent refers to the ADR decision 04281 (DOTACE). The Panel in this case decided that: “The documentation submitted by the Complainant, according to the English translation (as provided by the Respondent), is a proposal for the recording of DOTACE as a company. It is dated 7 April 2006 and confirms that a proposal for recording DOTACE as a company was delivered to the Czech Ministry of the Interior on 21 March 2006. To establish Prior Rights in the domain name dotace.eu, by way of a company name, the Complainant is required to demonstrate that the company of that name was fully incorporated at the date of making the application, i.e. 6 April 2006. It is apparent that the letter merely confirms that a proposal to incorporate DOTACE was filed on 21 March 2006. This is not sufficient to demonstrate that the Complainant was the holder of a Prior Right (i.e. that DOTACE was fully incorporated) on 6 April 2006, the date on which the application was received by EURid. The Complainant makes a number of submissions relating to the date on which DOTACE became a legal entity. The Complainant submits that, according to Czech law, DOTACE became a legal entity (and was therefore capable of claiming a Prior Right) on 22 March 2006, before the date on which the application was filed. However, this is not what the certificate submitted to the Respondent says. The burden of proof is on the Complainant to demonstrate that the Prior Right in the name DOTACE exists, and the Complainant is required to submit documentary evidence showing that it is the holder of such Prior Right. The onus is on the Complainant to demonstrate to the validation agent that it is the holder of a Prior Right which is “in full force and effect”. It was not for the validation agent to carry out further investigations to determine whether a proposal to incorporate a company under the name DOTACE had been approved. 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. On 6 April 2006, the date on which the Complainant made the application for registration of the domain name, the Complainant’s proposal for recording of DOTACE remained only a proposal. At this time there was no certainty that DOTACE would be successfully incorporated. Accordingly, the evidence submitted by the Complainant did not demonstrate that DOTACE had been incorporated on 6 April 2006, the date on which the application for dotace.eu was received by the Respondent”.
In addition, the Respondent refers, by analogy, to the numerous decisions dealing with trademarks applications which were not yet registered at the time of the application, referring explicitly to case ADR 1518 (VANHOUTEN).
For these reasons, the Respondent states that his decision to reject the Complainant's applications does not conflict with the Regulation and the complaint should be denied.Discussion and Findings
I. As it is clear from the case file details, 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)].
II. Pursuant 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, dated from 14.5 and 29.5. The first document contested the Response and the findings of the Panel in the DOTACE case (Nr. 4281), while the second document was in the form of a short comment towards the decisions in cases 4289 (AKCIE), 4292 (ZAJEZDY), and 4293 (KURZY), which were published during the course of these proceedings.
Given 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.
2. Documentary evidence for company names during sunrise period
I. THE REGISTRATION PROCESS ACCORDING TO PUBLIC POLICY RULES
The 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.].
Pursuant 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”.
II. THE VALIDATION PROCESS ACCORDING TO THE SUNRISE RULES
The 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”.
Of 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.
According to Section 12, “Unless otherwise provided under Sections 13 to 18 of these Sunrise Rules, the Applicant must submit Documentary Evidence containing
(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”.
Section 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
submit the following Documentary Evidence for company names referred to under Section 16(1):
(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.
Such 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”.
Annex 1 to the Sunrise Rules contains no opposite provisions to Art. 16.4.
Last 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”.
III. THE EXAMINATION PROCESS ACCORDING TO THE SUNRISE RULES
Chapter 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”.
IV. THE SCOPE OF ADR PROCEEDINGS
Finally, 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”.
3. Examination of the case file
Bearing in mind the provisions aforementioned, the Panel will now proceed to the examination of the facts of the case at hand.
I. 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:
Ministry of the Interior
#Address#
#file number# In Prague, 7 April, 2006
Certificate
The Ministry of the Interior hereby certifies that on 29 March 2006, a proposal for recording of
ZAKONI
Having 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.
was delivered to the Ministry of the Interior.
The recording was made under the file number: #file number#, identification number: #id no#.
II. Taking 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 proposal 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.
III. In 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:
“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.
In 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”.
Even 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.
1. The 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.
2. The 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)].
III. Finally, this Panel refers to 4 decisions of the CAC, which are of striking resemblance to the present case. These are the following: 4281 (DOTACE); 4289 (AKCIE); 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.Decision
the Complaint is DeniedPanelists
- Apostolos Anthimos
Date: 2007-06-08 Annex 1
The application for a domain name based on a company name during phased registration must be accompanied by sufficient documentary evidence regarding the existence of the company at the time of application (Section 11.3 Sunrise Rules). The complainant bears the onus of proving that his documentary evidence was in line with the requirements stipulated in Art. 14 Reg. 874/2004 and Sections 16.4 and / or 12 Sunrise Rules.
According to Section 21.2 Sunrise Rules the Validation Agent conducts a prima facie review of the documents deposited by the applicant; he is not obliged to proceed to any research regarding national legislation.