The panelist decision in the ADR case of f-zero is well worth reading.
It’s probably the first decision to show that common sense may yet prevail, though at what cost? Not everyone can afford the legal costs involved in an ADR dispute.
As I’ve mentioned previously, Eurid / PWC’s validation process is anything but perfect with applicants being sent cryptic and unhelpful rejection notices.
In any case the actual case in question is what caught my attention.
In this instance Eurid rejected an application on a technicality (not that they’ve ever done that before!!):
The complainant applied for the disputed domain name at 07/12/2005, stating as its prior right a national trademark registered in Germany. However, the Complainant submitted as documentary evidence a trademark certificate of the French Trademark Office. The Registry has rejected the Complainant’s application for registration of the domain name f-zero.eu on the grounds that the application submitted referred to the German trademark registration of F-ZERO, but contained a copy of the French trademark registration of F-ZERO as documentary evidence.
So, in simple terms, Eurid were being pedantic as usual.
The panelist didn’t agree:
I could not find any reason whatsoever to consider the present breach of the Sunrise Rules of such an importance, as to justify the rejection of the application. Accepting the opposite would mean that formalism prevails over common sense, a fact that I am not ready to take for granted, even for a profoundly automatic process, such as the one practiced by the Validation Agent. Apart from that, a brief view at our common legal principles would lead to the same result. It is widely accepted that any breach of a provision regulating procedural matters should lead to nullity / rejection, if this failure caused an irretrievable damage to the party that could not be remedied otherwise. In the case at hand it has been shown that the Respondent could have accepted the application as it was, since a prior right had been evidenced on behalf of the applicant. Hence, the Registry had no fear of violating the PPR.
So there maybe light at the end of the tunnel!!
You probably have not read many decisions. There are numerous precedents like this.
Go to http://adreu.eurid.eu/adr/categorization_of_decisions/index.php and choose the “Formal vs. Substantive review of Sunrise applications” section. You can check how many panelists have similarly ruled.
I’ve read several previous decisions – I wouldn’t have been commenting on them if I hadn’t. The ones I had read did not make this form of argument.
This decision cites previous cases : 1930, 1071 and 1310. The latter cites 1047, and the former cites 1674. The five cases altogether with this one have common findings.
And your point is?
As I already said I hadn’t noticed this aspect in previous rulings. I haven’t read every single one..
I also said it was “probably the first” I never said it was the first…