European Commission publishes dispute resolution policy concerning "eu" domain names

Last month, the European Commission published its policy rules on the implementation of the “eu” top-level domain in the EU Official Journal. These rules contain provisions on extra-judicial dispute resolution, which are quite similar to ICANN’s UDRP. The dispute resolution procedure may be conducted online or offline.

In this regard, Commission Regulation 874/2004 of 28 April 2004 on the implementation and functions of the .eu Top Level Domain and the principles governing registration first provides (Art. 22) that the dispute resolution may be initiated by “any party” claiming that a domain name registration is “speculative or abusive”.

Once the dispute resolution procedure has been initiated, participation of the domain name holder and the European Registry of Internet Domain names (EURid) is compulsory.

A domain name registration is “speculative or abusive” if (Art. 21) (a) the domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by national and/or Community law, (b) the domain has been registered without rights or legitimate interests in the name, and (c) if it has been registered or is being used in bad faith. The conditions of “legitimate interests” and “bad faith” are defined in terms very close to those of the UDRP. A legitimate interest is for instance provided if the domain name holder has used it in connection with a commercial activity, if he or she has been commonly known by the domain name, or if he or she is making a “legitimate and non-commercial or fair use of the domain name”. Bad faith is for example shown if the domain name was acquired with the purpose of selling it to the holder of a name in respect of which a right is recognized, to prevent the holder of a name from reflecting it in a corresponding domain name, or to mislead Internet users.

One may further note that Article 22(10) provides, in what seems at first glance to be a systematic violation of the respondent’s procedural rights, that “failure of any of the parties involved in an ADR procedure to respond within the given deadlines or appear to a panel hearing may be considered as grounds to accept the claims of the counterparty”.

As in the UDRP, the dispute resolution provider may be selected by the claimant from a list of (soon-to-be) accredited dispute resolution providers (Art. 22(5) and 23(1)).

The panel deciding on the case may be composed of one or three panelists (the situations in which there will be one, respectively three panelists is as of yet undefined). The selection of the panelists will be made “in accordance to the internal procedures of the selected ADR providers” (Art. 22(9)).

The documents-only procedure may be conducted online or offline, as Article 22(9) provides that “any written communication to a complainant or respondent shall be made by the preferred means stated by the complainant or respondent, respectively, or in the absence of such specification electronically via the Internet, provided that a record of transmission is available”.

The decision must be rendered within one month, be duly motivated, and will be published (Art. 22(11)). It will be “binding” on the parties unless court proceedings are initiated within 30 days of the notification of the outcome to the parties. To what extent they will be binding (like a contract or like a judgment or arbitral award, in regard to the DNS enforcement system only or also in relation to the public legal systems) is as of yet undefined. The only hint is that Article 23 speaks of “arbitrators”. However, the UDRP had in its early days also been referred to as arbitration…

The enforcement process is as of yet undefined, but it seems that it will be the same as in the UDRP, the registrar being ordered to cancel or transfer the domain name.

The first frustrating impression that this policy leaves is that it seems that we Europeans have not learned much--except the extension of the period within which the initiation of court proceedings may halt the enforcement process--from the lessons of ICANN: the dispute resolution body is still selected by the claimant, the substantive conditions for cancellation or transfer of the domain name are still relatively vague, and there still is no appeal mechanism.

Finally, one should note that the “eu” registry is not operational yet. According to the current timetables, the "eu" registrars will be accredited in June or July of this year, the sunrise period of registration will begin in December of this year, and the system will be fully operational by April 2005.

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