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What is The Arbitration Procedure For Resolving Internet Domain Name Disputes?
We present our article titled “Arbitration Procedure for Resolving Internet Domain Name Disputes“, written by Cagri KAPLAN, a Partner Attorney of MGC Legal.
What is The Concept and Purpose of an Internet Domain Name?
The concept of “internet domain name“, which we often hear in daily life, is defined in article 3 of the Electronic Communications Law No. 5809. Accordingly, the internet domain name; is the name that defines the internet protocol number used to determine the address of the computer or internet sites on the internet.
The domain name is created in two different ways. The first is the IP (Internet Protocol) system, which has existed since the first time the internet was born. This system consists of a sequence of numbers with dots between them, and each sequence corresponds to a separate web page. Since using the internet with long combinations of numbers and dots is a difficult and error-prone method, the second system, the domain name system, was put into practice. In the domain name system, the internet address consists of letters and punctuation marks. Each domain name also corresponds to an immutable IP number, and a program called “domain name server” is used to convert these two systems to each other.
Today, it is a known fact that the internet is widely used in all areas of life, such as public services, communication, commerce, social media, art, etc. Thanks to the domain name system, assigning symbolic names that are easy to read and remember and can generally be associated with address holders has become common. In this way, people are addressed with the phrases (name, brand, idea, slogan, etc.) they want to exist in the internet system, and they can differentiate from others on this issue.
Domain names direct internet users to brands, commercial enterprises, banking transactions, government systems, courthouse systems, communication tools such as television and radio, personal blogs, and many other channels. Domain names with great potential are allocated on a “first come, first served” basis.
The question of what legal protections will be provided to which right owner comes to the fore in this situation because it is frequently the case that domain names are similar to one another or that a domain name is the same as a brand and trade name belonging to different people or establishments.
It should be noted in advance that in case a phrase allocated as a domain name is the same/similar/related to a registered trademark or trade name on behalf of someone else, the owners of the trademark and trade name are protected against the domain name owner if they meet certain conditions. By taking advantage of the protections afforded to them in the Industrial Property Law and the Turkish Commercial Code, these persons may file a lawsuit against the domain name owner in court and request that the internet domain name be allocated on their behalf. At this point, the arbitration procedure offers a faster solution to those concerned.
What is the Arbitration Method for Resolving Internet Domain Name Disputes? (ITCA and ICANN)
In resolving domain name disputes through arbitration, the domain name extension should be looked at first. Because Turkey’s domain name arbitration authority is limited to domain names with “tr” extensions, and foreign arbitration centers, whose authority ICANN recognizes, are authorized in terms of domain name extensions other than this.
Therefore, when applying for arbitration, the issue of which arbitration center the interested parties will apply to is determined from the beginning. It is necessary to apply to the arbitration center authorized according to the extension of the disputed domain name.
Decisions made by both authorities (ITCA and ICANN) are executive and bind the parties. With this, the parties have the right to file a lawsuit before or after initiating the arbitration process regarding the same dispute. It is also possible to revoke the arbitration decision according to the court’s decision.
Related Article: New Center of Arbitration in Istanbul.
The details that we think may be useful regarding the application procedure in terms of national and international arbitration mechanisms are as follows;
National Arbitration Procedure in Internet Domain Name Disputes (ITCA)
In accordance with article 5(1/a) of the Electronics and Communications Law No. 5809, the Ministry of Transport and Infrastructure is the institution that determines the policies regarding the provision of internet domain name service in our country. Pursuant to article 6(1/v) of the same Law, the Ministry implements its policies in this field through the Information Technologies and Communications Authority (ITCA).
In this framework, ITCA authorizes and supervises the Dispute Resolution Service Provider (DRSP)(arbitration center) to settle domain name disputes.
The arbitration centers authorized by ITCA are; Information Technologies and Internet Security Association (ITISA) and TOBB Mediation and Dispute Resolution Center. They have limited decision-making authority only for domain names with the “tr” extension.
Under article 25 of the Internet Domain Names Regulation; in applications within this scope, the applicant must prove that the following three facts have occurred together;
- The disputed domain name is similar or identical to the brand, trade name, business name, or other promotional signs owned or used in trade,
- The party that allocates the domain name does not have a legal right or connection with this domain name,
- Malicious allocation or use of this domain name by the registrant.
The details of the arbitration procedure are as follows:
- Complaints can be made by filling out the application forms on the website of authorized arbitration centers.
- The complainant has the right to choose whether the arbitral tribunal should be composed of 1 or 3 arbitrators. The opposing side can choose the number of referees.
- The complainant can make a single application for more than one internet domain name allocated to the same person.
- For the complaint to be heard, there must not be an ongoing application by a different arbitral tribunal containing the same demands and allegations or a previous court decision.
- The internet domain name subject to the complaint is frozen for the dispute duration.
- In their application, the complainant may request only the cancellation of the domain name allocation and a decision to cancel and allocate on their behalf.
- The parties may request that the complaint record be closed before a decision is made on the complaint by making a joint request before the arbitral tribunal decides. In this case, the arbitral tribunal’s fees will not be refunded to the parties.
- The arbitral tribunal takes its decision by simple majority. Abstention votes cannot be used.
- Following the acceptance of the application, the arbitral tribunal immediately notifies the disputed domain name to TRABIS and the relevant registry. The DRSP announces the subject on its website, and the domain name is frozen.
- Suppose the decision is not notified to the DRSP within ten business days from the notification of the decision to the parties or at an earlier stage of the dispute resolution mechanism process. In that case, the requirement of the decision is immediately fulfilled by communicating it to TRABIS by the relevant KK and DRSP. If the DRSP is notified that a preliminary injunction decision has been taken on the matter within ten business days after the decision is sent to the parties or at an earlier stage of the dispute resolution mechanism process, the dispute resolution mechanism process continues, but the arbitrator or arbitral tribunal decision is not implemented. In this case, the litigation process is expected to be completed. The court decision at the end of the process is carried out immediately by conveying the relevant KK and DRSP to TRABİS.
International Arbitration For Internet Domain Names (ICANN)
After the first internet-based communication for military purposes was done in 1969, the United States Government established IANA (Internet Assigned Numbers Authority) to manage internet protocol numbers.
IANA has continued its activities in this field for a long time and has gradually transferred its operations to ICANN since 1998 as part of the commitments of the USA to transfer the internet naming system to a non-profit organization. The transfer process was completed in 2016.
ICANN was established in 1998 and had been operating since 1999 within the framework of the current UDRP (Uniform Domain Name Dispute Resolution Policy) document on the management of the internet domain name system.
The UDRP contains principles regarding the cancellation, transfer, or correction of a domain name assignment. According to article 3 of the UDRP rules, ICANN;
a) Administrative authority decision regarding the domain name change,
b) Court or arbitral award,
c) Decision taken by an administrative board whose authority.
In case of one of the conditions, it fulfills the necessary changes in the domain name allocation.
However, ICANN’s powers in this regard are valid for commonly used gTLDs such as “com“, “net“, and “org” and New gTLDs, and arbitration activities are carried out by arbitration centers authorized by ICANN.
The decisions made by these arbitration centers are binding and enforceable without prejudice to the exceptional circumstances described below. The parties may choose to go to court instead of taking the dispute to arbitration. However, if they decide to go to arbitration, they cannot apply to an arbitration center other than the arbitration centers authorized by ICANN.
After these general explanations, if we come to the details of the foreign arbitration procedure, pursuant to article 3 of the UDRP, the complainant has to prove that the following three cases have occurred together (in fact, the 3rd case below is again divided into two in itself and these two sub-conditions are sought to be met together. Therefore, the fulfillment of four conditions in total is sought);
- Complaint applications are made by filling in electronic application forms on the website of the arbitration centers.
- The complainant may choose to form an arbitral tribunal from 1 or 3 arbitrators.
- The complainant must explain the brand on which they base their complaint and the goods and services offered under this brand (including the goods and services they plan to offer in the future).
- Other legal remedies applied/canceled, if any, related to the domain name subject to the complaint should be explained.
- The complainant can make a single application for more than one internet domain name allocated to the same person.
- Following the complaint filing, the arbitration center sends a letter to the service provider of the relevant domain name, requesting information on the allocation of the relevant domain name, and, in the same letter, orders that the modification of the domain name be stopped during the arbitration process. The service provider makes these transactions in 2 business days and only notifies the complainant (domain name allocator) once they complete the transactions. After the procedures are completed, the complainant’s application is notified to the domain name owner.
- The complainant may respond to the complaint within 20 days from the notification of the complaint.
- The response petition is submitted in electronic form. The reply petition includes detailed answers and evidence regarding each claim. Apart from this, the petition should include the following:
- The name,
- Postal address,
- E-mail address,
- Telephone and fax numbers of the complainant, and
- The number of members the arbitral tribunal wants to consist of.
- In the reply petition, other legal remedies, if any, applied/canceled regarding the domain name subject to the complaint should be explained.
If the complainant does not respond to the complaint, the arbitral tribunal examines the allegations in the complaint petition and decides.
Unless the arbitral tribunal deems it necessary, the arbitration proceeding is conducted without a hearing on the file.
- Except for exceptional cases, the arbitral tribunal communicates its decision on the complaint to the service provider within 14 days of its appointment.
- Decisions are made by a simple majority in 3-member arbitral tribunals; abstentions cannot be used.
- The service provider notifies the parties, the registrar, and ICANN of the arbitral tribunal’s decision within three working days.
- The parties may suspend the complaint with the declaration that the settlement process has been entered before the arbitral tribunal’s decision or terminate the complaint completely with the declaration that the settlement has taken place.
- In the event that an application is made to the courts regarding the same domain name before or during the complaint review, the arbitral tribunal may suspend or cancel the arbitration process or conduct the process and make a decision on the merits of the complaint.
- Before ICANN implements the decisions regarding the cancellation or transfer of the domain name given by the arbitral tribunal, they wait for ten business days starting from the date the decision is sent to them. If the complainant declares that they have filed a lawsuit on the same issue and submits the relevant documents to ICANN within this period, ICANN will hold the decision of the arbitral tribunal and then advance the process according to the sanction contained in the condition in the case one of the following conditions is met;
- The parties have agreed and decided differently from the arbitral tribunal’s decision. In this case, the allocation change is made according to the parties’ agreements.
- Withdrawal or dismissal of the lawsuit filed. In this case, the decision of the arbitral tribunal is applied.
- The court has decided that the domain name owner does not have the right to use the domain name. In this case, the court decision is applied.
As can be seen, the decisions made by the arbitral tribunals are more advantageous than the court process in terms of being fast and directly enforceable. However, it is also possible for those concerned to carry out the court process without waiting for the outcome of the arbitration proceedings. We hope it will be useful to all our readers, especially professionals.
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