How to avoid inadmissibility in the SYRELI procedure

To date, out of all the files declared complete [1] at the time when proceedings were initiated only 4.5% have been considered inadmissible by the members of the SYRELI College.

Even if only 4.5% of the SYRELI files are concerned, it is still possible to lower this rate and even avoid inadmissibility at all.

The SYRELI College makes a distinction between two types of inadmissibility:

• the inadmissibility of the claim and,
• the inadmissibility of the documents filed by the Applicant.

The inadmissibility of the claim causes the greatest frustration for Applicants because it is often the result of omissions on their behalf and has the effect of terminating the proceedings even though the merits of the case have not been analyzed by the College.

How to avoid inadmissibility in the SYRELI procedure

In the seven years of existence of the procedure, the SYRELI College has, so far, identified six causes of inadmissibility; the main one being the lack of authority given to the Applicant’s representative which by itself represented  56% of the grounds of inadmissibility.

This is because the SYRELI College requires the provision of a power of representation for all the persons who file a claim on behalf of an Applicant. If the representative of the Applicant does not prove that the representative has obtained authorization to represent the Applicant, the file will be declared inadmissible.

In its decision FR-2013-00465 amelienothomb.fr, the SYRELI College declared inadmissible the claim filed by the Applicant’s publisher acting on her behalf in the proceedings. In fact, in this particular case, the Applicant had not provided any power of representation to its publisher.

The same applied in decision FR-2017-01320 chaise-tolix.fr in which the claim was “made for the Applicant by an individual who, although working for a law firm, is not entitled to represent clients”, and furthermore “no document justifying the person’s standing to represent the Applicant in the SYRELI proceedings has been provided”.

In decision FR-2017-01303 biocoop-souffel.fr, the SYRELI College also declared inadmissible the claim made for the Applicant by Mrs M. after noting that no document could identify that the latter had the capacity to represent the Applicant.

More generally, the power of representation is essential for the analysis of the file to be continued by the College when the Applicant is represented by a person other than:

• the legal representative of a company,

• a lawyer, or

• a industrial property attorney for a case filed on the basis of grounds falling within its sphere of competence.

The second cause of inadmissibility noted by SYRELI College is the existence of judicial proceedings in progress concerning the domain name which is the subject of the dispute. The SYRELI College has rejected claims by Applicants because of the existence of judicial proceedings in 20% of the cases of inadmissibility.

Although this is a criterion of completeness of the claim [1] the Applicant sometimes omits to report the existence of such legal proceedings. The SYRELI College, when informed by the Holder, rejects the claim without analyzing the merits of the case.

Finally, the other grounds for inadmissibility noted by SYRELI College relate to the evidence provided by the Applicant:

The College has declared inadmissible claims filed:

• entirely in a foreign language (evidence and argumentation)

• without any supporting documents

• in which none of the evidence is exploitable (e.g. illegible screen-shots)

• in which all the supporting documents are filed on a cloud accessible only via a hypertext link.

These causes of inadmissibility relating to the evidence are important. When the evidence is essential in the Applicant’s argument, the College sets it aside from the analysis, which has a considerable impact on the outcome of the decision.

For example, in decision FR-2017-01341 baume-du-tigre.fr, the SYRELI College found that “substantial items of the Applicant’s argument were not provided in French, in particular the exclusive distribution agreement with X […] and therefore decided to exclude them from the discussion“.

A claim as such may be admissible while substantial evidence filed in a foreign language are inadmissible. In the same case, when SYRELI College questioned the Applicant’s interest in bringing proceedings, the critical document which had previously been declared inadmissible prevented the Applicant from substantiating its interest in bringing proceedings.

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