Thu 15. Aug 2024, 15:16
A Mr Close from Germany brought ADR proceedings before the WIPO because he considered his name rights to have been infringed by the domain close.eu. The opponent pointed out that Close had already lost a case concerning the domain and that he was not presenting any new facts. This led to his second defeat.
Martin Close from Germany believes that his naming rights have been infringed by the domain close.eu. He started ADR proceedings before the WIPO. Among other things, he claims that the domain close.eu corresponds to his surname, while the term ‘Close’ is not contained in the opponent's name; the latter is also not the owner of a corresponding trade mark. The opponent had only registered the domain for speculative purposes and had set up a redirect to a standard website on which it was offered for sale. The opponent, Evolution Media e.U., is active in domain trading and registered the domain close.eu on 3 January 2022; it is currently not connected. The opponent first submits that the complaint is identical to an earlier complaint by the complainant, which was rejected by the Czech Arbitration Court (‘CAC’). The complainant is conducting the current proceedings without proving that new facts have come to light. The complainant has not proven that it has a recognised right to use the name ‘Close’ or a right to a name. Furthermore, the opponent states that offering the domain for sale is his legitimate interest. He had registered the domain because of its intrinsic value: the English term ‘close’ can be translated as ‘near’, a general term from the dictionary that can be used by many different companies for many different purposes. The decision was made by Brussels lawyer Flip Jan Claude Petillion, who is also the publisher of the ‘Getting the Deal Through’ compendium for ‘Domains & Domain Names’.
Petillion dismissed the complaint because the complainant did not indicate that a previous decision had already been issued in the matter and that there were no reasonable grounds for filing a new complaint (Zaak no. DEU2024-0012). The opponent had demonstrated that the complainant had already filed an identical complaint against the respondent regarding the domain before the CAC. The Panel in the earlier proceedings dismissed the complaint (see CAC-ADREU-008302). The complainant did not mention this at all and did not indicate any circumstances, such as new facts, that could justify the renewed complaint. Moreover, Petillion considered that the case did not fall within any of the limited circumstances justifying the resubmission of a previously decided appeal. Petillion referred to the earlier decision and that it had been rejected mainly on the grounds that there was no proof of the complainant's identity (identity card or passport) and that the complainant could not prove that his surname was recognised or protected as a right under German national law. In the present case, although the complainant provided a copy of his identity card and referred to German law, Petillion considered that the complainant could and should have provided the additional information earlier. However, even if this additional information was taken into account, it was not sufficient to show that the complainant's surname was recognised or protected as a right under German national law for the purposes of the present proceedings. The complainant referred to the ‘German Names Act’ and ‘§ 1757 BGB’. The first reference is unclear and, according to the opponent, § 1757 BGB refers to the assignment of a surname and not to its use. Be that as it may, it was essential for Petillion that ‘close’ is a dictionary term and that this was decisive for the opponent when registering the domain. It was not apparent that he had the complainant in mind. Petillion thus dismissed the complaint. But he went further: Petillion again enumerated the deficiencies of the complainant's submission in order to establish that the complaint was filed in bad faith and constituted an abuse of the administrative procedure.
The ADR decision on the domain close.eu can be found at:
https://www.wipo.int/amc/en/domains/dec ... 4-0012.pdfThe earlier ADR decision of the CAC can be found at:
https://eu.adr.eu/decisions/detail?id=6 ... 072e057bf2