DOMAIN NAME DISPUTES
The Defiition of Domain Name (Web Site)
Domain names are names that identify the IP (Internet Protocol) number used to identify the address of computers or websites on the Internet, namely, the domain name is the name of a website on the Internet.
Domain Name (Web Site) Extensions
In the international platform, domain names are formed by 7 zones named as gTLD (generic Top Level Domain) including com, org, net, edu, mil, k12, and according to the country codes which are constituted to the ISO- 3166 standard and named as ccTLD (Country Code Top Level Domain).
The most common domain name extensions are com, net, org etc.
.com for commercial organizations.
.net for internet network providers
.edu for educational institutions and organizations
.gen for personal or institutional applications. The abbreviation of “generation”.
.gov for governmental organizations
.mil for military establishments and organizations
.nom is suiitable for the usage of individuals
.org for not-profit organizations.
.int for international treaty organizations such as the United Nations
Types of Domain Names
Domain names are divided into two types generally;
1. International Domain Names
These domain names are registered with the companies who are registered to US ICAAN Consortium and first applying party obtains the registration of these domain names and no documents are required for the registration thereof. For this reason all the words that we use in the daily life, names of cities and places, names of famous people and all other words can be registered. These domain names are classified according to their extensions and the most used extensions are .com, .net, and .org.
2. Geographical or Domestic Domain Names
These domain names also have the extensions like international domain names but they also include the country code at which they are registered. For example, if you register the domain name in Turkey; the country code of .tr are added at the end of the domain name.
For the domestic domain names, specific documents are required for the registration of domain names.
With its specialized and experienced staff; Başalan Patent & Trade Mark is rendering services not only in the registration of domain names but also protection of such domain names with the administrative and legal bodies.
Domain Name Cancellation Processes
In our century, internet and the services via internet became one of the most important aspect for the globalization and/or the world and is being accepted as the most important invention in 21th century.
The developments on the internet network not only created changes and new implementations in every area of our daily life, but also reinforced the implementations in the industrial and intellectual property protection matters.
Accordingly, the domain names gained a vital importance for the companies as they became the distinguishing aspect.
However, unfair gains are obtained by third parties who are acting in bad faith and registering the domain names with small costs and who sells such domain names to the real owners with expensive and huge amounts.
Thereby, if a domain name registration is infringing the trademark or name of any company or person and creating unfair competition; legal actions can be started against such domain name registration and then preliminary injunction can be requested from the court.
In addition, the claims may be filed by World Intellectual Property Organization Arbitration and Mediation Center and the following criterias shall be met in order to filing a cancellation of a domain name registration;
A. The domain name(s) shall be identical or confusingly similar to a trademark or service mark in which the plaintiff has rights
B. The Defendant shall have no rights or legitimate interests in respect of the domain name(s);
C. The domain name(s) shall be registered and being used in bad faith
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Domain Name Disputes and Alternative Solutions
The following disputes caused by;
· Applying the "first come, first served" rule
· Not demanding any documents to prove the legal relationship of this name from the requester during registration
· A registered domain name contains an identical or similar descriptive personal or intellectual property right, such as a name, title, brand, belonging to another person or organization
These domain names, which are registered unfairly as stated, are mostly put up for auction for very high amounts – exceeding the registration cost – in order to obtain a material benefit, and sometimes they are offered for sale directly to the right holder. Sometimes, right holders are harmed by using registration, which includes unfair competition or abuses the right holder.
The person who registered the domain name on behalf of himself will prevent you to operate a website by using the domain name.
The e-mails can be sent to the third parties by creating e-mail accounts has the last part of the subjected domain name which gives an impresssion that you sent them. For example; email@example.com.
The contents which you do not want to associate with yourselves can be published by the website which contains the domain name of your name. Such as; websites which are calumnious, immoral, reflect the opinions and products of your competitors, has political contents etc.
The Solutions of Disputes:
There are organizations that register domain names under ICANN. While previously only Network Solutions Inc. was active and authorized this matter; the increase in the use of the Internet has led to an increase in the number of establishments that carry out the registration business and the costs of this process have decreased considerably.
The proliferation and development of the Internet with each passing day necessitated new regulations regarding the registration of domain names and on October 24, 1999, ICANN published a regulation covering a set of rules on "Internet domain name dispute resolution"(UDRP-Uniform Rules for Domain Name Disputes - https://www.icann.org/resources/pages/rules-be-2012-02-25-en ).
Every organization that carries out internet domain name registration processes under ICANN and every natural and legal person receiving service from these organizations are subject to these rules.
Solutions of Internet Domain Names Disputes
It is the bringing of the issue before the resolution authority with a unilateral complaint (application) carried out within the framework of the rules (UDRP) published by ICANN in 1999 and subject to all gTLD internet domain name disputes, without seeking the will of both parties.
When applying to register a domain name or requesting renewal of an existing domain name registration, applicants are deemed to have made the following statements:
All explanations made in the registration agreement are complete and correct,
As far as is known, the registration of the domain name does not violate the rights of third parties,
The domain name is not registered for an illegal purpose,
The domain name will not be used in a way that knowingly violates the relevant laws or regulations,
It is the registrant's responsibility to determine whether the domain name violates the rights of others.
Again, according to the ICANN Regulation, registration organizations cancel, transfer and change their domain registrations only in the following cases:
When it receives such an instruction in written or electronic form from the person who wants to register it or its authorized representative,
When such an order is received from a court of competent jurisdiction or arbitral tribunal; and/or
When such a decision is taken by an arbitral tribunal (Administrative Board) to which it is a party and taking any administrative action in accordance with ICANN's Regulations or a version of a regulation that ICANN may issue later.
Registration agreement and other legal rules
In order to benefit from the UDRP system and get results, right holders should prove following points by applying to any of the organizations authorized by ICANN:
The domain name which registered by opposite party includes the right of a trademark, Trade title, person name etc. belongs to himself,
The opposite party has no legal connection with this name,
The domain name has been registered and used in bad faith.
MALICIOUS REGISTRATION AND USAGE
Circumstances showing that the domain registration is essentially made for the purpose of selling, renting or otherwise transferring the domain name registration to the claimant or the plaintiff's competitor, who is the owner of the trademark or service mark, for an amount exceeding the documented registration and direct-related costs of the domain name consider bad faith which are:
Domain name registration is made in order to prevent the owner of the goods or service from using its trademark in the domain name, and while doing this, it is necessary to act with commercial purposes,
The domain name registration was made mainly for the purpose of harming one of the competitors,
Intentionally attempting to attract internet users to the website for commercial gain by using the domain name, creating the risk of being confused with the plaintiff's trademark in terms of supporting, relationship, promotion and source of a website and the goods or services offered in this environment.
When the aforementioned cases are proven with evidence, two consequences arise according to the request of the disputed domain name right holder:
Transfer: Transfer of the disputed domain name to the right owner
Invalidity: It is a decision about the invalidity of the registration.
It is not possible to file an appeal against these decisions made by authorized institutions. The questions may arise as: So what is the next development? Isn't there any remedy for the person who was decided against?
According to the UDRP rules, the person who made the complaint (complainant) determines the place of jurisdiction regarding the legal remedies that the other party can apply for the decision made as a result of this complaint while filling out the application form. Accordingly the jurisdiction:
The registrar of the domain name can be the court in the place where the head office of the company is located, as well as the court in the place where the domicile of the other party, the defendant, is located and the opposite party has right to file a lawsuit in the authorized court against the decision made within 10 working days.
The resolution authorities for the UDRP are the following five organizations determined by ICANN:
Asian Domain Name Dispute Resolution Centre [ADNDRC] : This organization, which has been authorized to settle UDRP disputes since February 28, 2002, has three offices in Beijing, Hong Kong and Seoul.
The National Arbitration Forum [NAF]: This organization which headquartered in the USA, has been providing services for the resolution of UDRP disputes since December 23, 1999.
World Intellectual Property Organization [WIPO]: It has been working on the resolution of UDRP disputes since December 1, 1999 and is the most frequently consulted and dispute resolution institution so far.
The Czech Arbitration Court (CAC): This institution, which was originally authorized to settle disputes regarding .eu, started to accept complaints including UDRP disputes as of January 2009.
Arab Center for Domain Name Dispute Resolution (ACDR): As of January 1, 2014, it has been authorized to resolve UDRP disputes.
Approximately 56 days
The time allowed to the other party to respond to the complaint: 20 days
Decision writing period of arbitrators: 14 days
The rest of the time procedural transactions have been shortened even more with the e-UDRP system.