The sunrise period for .eu domain names registration was a sprint run. For instance there was only six minutes between two applications to register eurostar.eu. It also led to a rush for trade marks (especially in those EU countries were a registration could be delivered quickly), in order for domain names applicants to qualify for the sunrise period.

Domain names and trade marks might be the only legal subjects upon which a dispute would deal with tyres mixed with ampersands, as in the present case.

A reference for a preliminary ruling from the Oberster Gerichtshof (Austria) was lodged on 22 December 2008, regarding the interpretation of Commission Regulation No 874/2004 on .eu Top Level Domains and the principles governing their registration.
The case is referred under C-569/08 (Internetportal und Marketing GmbH v Richard Schlich).

The domain name at stake was first disputed before the Prague Arbitration Court. An alternative dispute resolution (ADR) decision issued 24 July 2006 over the reifen.eu domain name (issued in German, but featuring an English summary) exposes that:

The dispute is about the domain name “reifen.eu”. The word “Reifen” is a German generic term and means “tyres” in English. It was registered by the respondent, a limited liability company with its seat in Salzburg, Austria, during the Sunrise Period, based upon a trade mark registration in Sweden [&R&E&I&F&E&N&], which served as a prior right. The complainant has registered the trade mark “reifen” in the Benelux-countries, but did not succeed to acquire the disputed name, because the respondent managed to file a respective petition before him.

As far as the registration of complete names is concerned, where such names comprise a space between the textual or word elements, identicality shall be deemed to exist between such complete names and the same names written with a hyphen between the word elements or combined in one word in the domain name applied for.

Where the name for which prior rights are claimed contains special characters, spaces, or punctuations, these shall be eliminated entirely from the corresponding domain name, replaced with hyphens, or, if possible, rewritten.

Special character and punctuations as referred to in the second paragraph shall include the following:

~ @ >REFERENCE TO A GRAPHIC> $ % ^ & * ( ) + = < > { } [...] | \ /:; ',. ?

(...)

the respondent has followed a pattern of behavior, which culminated in a bad faith registration. The question if a domain name owner who registers a trade mark such as &R&E&I&F&E&N& little before the beginning of the Sunrise Period, in order to gain a prior right according to S. 10 of Reg. 874/2004, and to proceed then to the registration of the disputed domain name, by applying the technical provision of S. 11 (2) Reg. 874/2004, has registered this domain name in bad faith, is to be answered in the affirmative.

1. Is Article 21(1)(a) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration to be interpreted as meaning that a right within the meaning of that provision exists,

(a) if, without any intention to use it for goods or services, a trade mark is acquired only for the purpose of being able to register in the first phase of phased registration a domain corresponding to a German-language generic term?

(b) if the trade mark underlying the domain registration and coinciding with a German-language generic term deviates from the domain in so far as the trade mark contains special characters which were eliminated from the domain name although the special characters were capable of being rewritten and their elimination has the effect that the domain differs from the trade mark in a way which excludes any likelihood of confusion?

2. Is Article 21(1)(a) of Regulation (EC) No 874/2004 to be interpreted as meaning that a legitimate interest exists only in the cases mentioned in Article 21(2)(a) to (c)?

If that question is answered in the negative:

3. Does a legitimate interest within the meaning of Article 21(1)(a) of Regulation (EC) No 874/2004 exist if the domain holder intends to use the domain - coinciding with a German-language generic term - for a thematic internet portal?

If questions (1) and (3) are answered in the affirmative:

4. Is Article 21(3) of Regulation (EC) No 874/2004 to be interpreted as meaning that only the circumstances mentioned in subparagraphs (a) to (e) are capable of establishing bad faith within the meaning of Article 21(1)(b) of Regulation (EC) No 874/2004?

If that question is answered in the negative:

5. Does bad faith within the meaning of Article 21(1)(b) of Regulation (EC) No 874/2004 exist if a domain was registered in the first phase of phased registration on the basis of a trade mark, coinciding with a German-language generic term, which the domain holder acquired only for the purpose of being able to register the domain in the first phase of phased registration and thereby to pre-empt other interested parties, including the holders of rights to the mark?