The third sub-paragraph of article 12(2) 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 meant that, in a situation where the prior right concerned was a trade mark right, the words “licensees of prior rights” did not refer to a person who had been authorised by the proprietor of the trade mark concerned solely to register, in his own name but on behalf of that proprietor, a domain name identical or similar to that trade mark, but without that person being authorised to use the trade mark commercially in a manner consistent with its functions.

The Court of Justice of the European Union (Second Chamber) so held on a reference for a preliminary ruling made in two sets of proceedings between Pie Optiek SPRL and (1) Bureau Gevers SA and (2) European Registry for Internet Domains ASBL (‘EURid’) concerning the registration by Bureau Gevers of the domain name www.lensworld.eu in its own name but on behalf of Walsh Optical Inc, United States company, the proprietor of the trade mark to which that domain name corresponded.

THE COURT (Second Chamber) ruled as follows. Article 4(2)(b) of Parliament and Council Regulation (EC) No 733/2002 on the implementation of the .eu Top Level Domain (OJ 2002 L113, p 1) provided that domain names requested by any undertaking having its registered office, central administration or principal place of business within the European Union, any organisation established within the European Union, without prejudice to the application of national law, and any natural person resident within the European Union must be registered in the .eu Top Level Domain. Such undertakings, organisations and natural persons were, according to the first paragraph of article 2 of Regulation No 874/2004, parties eligible to register one or more domain names under the .eu Top Level Domain. It followed that, in so far as the third sub-paragraph of article 12(2) of Regulation No 874/2004 widened the circle of eligible persons during the first part of phased registration to include licensees of prior rights, those licensees had to satisfy the test of presence in the European Union and, at the same time, the prior right concerned must, at least partly and/or temporarily, be available to them instead of to the holder. Accordingly, the third sub-paragraph of article 12(2) 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 meant that, in a situation where the prior right concerned was a trade mark right, the words “licensees of prior rights” did not refer to a person who had been authorised by the proprietor of the trade mark concerned solely to register, in his own name but on behalf of that proprietor, a domain name identical or similar to that trade mark, but without that person being authorised to use the trade mark commercially in a manner consistent with its functions.