Eurid against Eurid ?
From the European extension casting, all seemed like it was flowing in the best sense…At least, until the first names attribution. But, unfortunately, we were expecting for this . We supposed that this machine without any fault never would comes yawning.
Along the last week, some companies and some personal in charge said to our editorial office they verified a big number, more a less important, of mistakes. These could injured, in a very important way, some aspirants and rights owners. We took this into account, but we didn’t know the certain importance of these cases that seemed isolated.
After our searching, a big number of applications changed into "expired" status. At the same time the documents were received and dated for the pwc. It seemed the registry is unable in front of this unknown situation. But what is this problem about ?
Like we mentioned in different moments in previous articles, during the sunrise cycle, all possibly selected people under the conditions setting up by the Eurid, could applied for the application in order to obtain the corresponding domain in relation with their trade-mark.
For the present, at the moment of this demand, they had a 40 days period to sending the different documents asking by the register office and the verifier agent (pwc be). Generally, the register office, where the applications were sent, is in charge of this matter. From this time, the documents were received by the pwc He gives you a new date and notices it to applicants and aspirants. The documents are in the proper agent hands and he is going to analyze them in order to give his decision about their acceptance or denied. Just in case these documents weren’t to the pwc in a 40 day term, the requirement status would change automatically into "expired" condition. That would mean we don’t take into account the petition and this would be automatically rejected. At least, this happened exactly, except because all documents were sending and confirming properly by the pwc.
It is useless to detach the astonishment and the panic showing by list managers. They were prevented about this irregularity, but we think it is because of technique., the Eurid isn’t in the position of repairing these regulations into their real position. Therefore, it must do an internal procedure against itself (for this is the little visible star on the consultant boxes about www.whois.eu). The exam procedure of those dossiers has, at this time, an incommensurable delay ( some applications will be accepted after an exam in 2.007), a planning column is going to add to the others in order to allow the integration into the calendar of revision procedures or the ADR that third people, in this case, want to bring against Eurid decision.
It is useful to remember this is the first time in the world history of domain names that, a registry is in charge of introducing that extension, showing this kind of importance, taking into account, in the best way they can, all rights owners.
This problem appears after the sunrise opening. But, we can find another empty space that seemed to be a long time before the casting of this extension.
Anteriority or territoriality ? The absence of electronic references is suffering by Europe
Actually, the "sunrise" procedure should permit to trade mark owners settle their names during the first phase. Until here, the intention was laudable. But, it is inside the treatment method and the names attribution where things were complicated. If this is based on the fact that a person has his rights under protection because of the copy rights or industrial property, this right doesn’t have to be submitted to a rule , to a technical difficulty or to a private organization who grants the privilege to this first that arrives. The trade mark owner must have this right due to the registering date of the trade mark. He couldn’t see that his right was removed because of internal regulations. There is clearly a right abuse in this Eurid rule in relation with the person name attribution whose trade mark was registered with the only intention of giving a response to the registry requirement about the attribution of the name or domain : a trade mark properly registered .
Example : Mr. Dupont owns the "abc" mark. He settles it to the inpi on January 1, 2000. The mark has been published and accepted in the order asked for the future owner. After that, Mr. Dupont takes apart the same mark in different kinds for a different activity on January 1, 2004. The mark is published and accepted again in the same conditions. The two aspirants present an application to eurid to obtain the domain name "abc.eu". Under the eurid rules, the name will be attributed to the first one that made his presentation and not to the one who owns at first the mark.
The right, communitarian or national, and the mark territoriality have for sure a big importance when the additional activity is performed into a national level.. But, anteriority is primordial at first, when it is in the Internet domain, and this is exactly the case we want to take into account. In such kind of world, where the territoriality has no sense, it is useless to hinder a French mark exports for the networks to the border countries, or even to foreign countries. In front of this dilemma, the eurid seems to cut in direction of the territoriality more than the anteriority. It is a real paradox for a registry who offers the big extension of European Internet !
In this hypothetic case, the treatment is more simple for the eurid, but, is more difficult for victims. It doesn’t worry about the real right related with the registering date of the mark ; and the control becomes more easier, more simple. The first one who is coming in the first place will see his proceeding checked totally ignored by the next who will present it as right. This rule that the first that arrives is the first that achieves the domain also incited to other kinds of articulations that deflected the good will of eurid. A registrar recognized by the eurid only has the right to present an application in a second, some of these put a lot of applications belonging to unreal companies with the purpose of increasing that number. The most quantity of names that were asking in the first place belonged to these proper registrars. But there was no control by the eurid in order to preserve the truthfulness of these applications. It was enough to see the creation dates and the social capital of these societies made some days before in some cases with only 100 pounds or euros. We need to point that each application should be accompanied with a payment of 10.000 euros. This shows the necessity of thinking deeply about it.
The fairest solution were been, for sure, to help the anteriority of the trade mark. And to go on, after the reception of the whole applications in a certain determined term, on a study about the anteriority of marks and in consequence, to give the dominion name to the oldest mark owner. If Europe is unified, this should be for the best and the worst. A domain name using in .eu has an European disposition therefore the national territoriality has no sense. This spurs some people with bad intentions to deflect the proper origin of the mark rights registering like a crowd the generic names in the presence of an official copy rights organism. For this, it is that into the registering offices from French Benelux, and the most important European countries saw the raising of applications forms in more than 500% ( 1000% in some countries). This happened along the first months of this 2.005 year, corresponding date of the publication of the rules in relation with the domain names attributions en .eu. Some independent people (principally professionals in domain names) are the responsible of the inscription of more than 2.000 marks that will be never used in their first disposal. This puts by the mark idea from its initial matter. Here and from now, the numerous procedures ADR are in course. It seems easy to imagine the consequence of the events in the next months. The cost of these procedures should dissuade a big number of applicants. It is necessary to have almost 4.000 euros for an ADR procedure (Attorneys costs included). It’s a pity that the European construction doesn’t come up to a big number and certainly knows a lot of failures. Only future will tell us.
Eurid explains itself
Because of the writing of our article and in the moment of its publication, we receive an answer from the eurid in these terms, Wednesday, March 15, 2.006 2:59 p.m.
Their domain name as a certain number of other applications are pointed like "expired mistakes", on the datum base WHOIS, even if you sent your documents on time. This is a technical mistake that we will correct soon. It is useless to react in consequence. Your demand will be taking into account and the datum base WHOIS will be put in a time as soon as it is possible.
We would apologize for this inconvenient Best regards
The EURid Staff
Wednesday, March 15,2006, 2:59 p.m.
JCV & SB