DOMAIN NAME REGISTRATION PROCEDURES AND PRACTICES AND DOMAIN NAME DISPUTE RESOLUTION Madeleine de Cock buning IIIB 2 Introduction This report gives first of all an overview of Dutch registration procedures and practises with regard to domain names(A ) It lists the key payers in the dutch domain name registration procedure and gives a description of the domain name registration procedure. Than a short remark on the qualification of the right in a registered domain name is given and the tem and term ination of the registration agreement and the licensing and transfer of doma in names are described. The second part of this report deals with Dutch domain name dispute resolution(B ) It gives the legal framework for domain na ses and deals with Dutch court proceedings in the field of dom a in names Domain Name Registration Procedures and practic 1. Key Players in the Domain Name Registration Procedure 1.1.1 Registration Autho The Dutch Registration Authority named Stichting Internet Domeinregistratie (SIDN), registers second level domain names in the nl ccTlD and issues rules regarding doma in name registrations. It also sees as its task quality contol and the stimulation of standardisation(inter ) nationally SIDN is a private organisation. From its outset, SidN has the intention to be a non-for-profit organisation. It has chosen as its legal entity foundation(Stichting) which by law is prohibited from distributing its profits amongst directors or mem bers The Board of Registration Authority SIdn consists of representatives of Intemet Service Providers (ISPs)and external experts. All ISPs and members of the public that register a doma in name can apply to be a member of the Participants Council. The Council adv ises the board The organisation of Registration Authority SIDN consists of different parties The Board is responsible for the policy. It consists of seven(7)persons. The Participants Council has introduced four (4)members of the Board. The Board directly appoints three(3)experts. The Bureau is responsible for the preparation and execution of the policy. The actual registration of the domain names is done by the rganisation called KEMa which is responsible for all operational activities. The Participants Council advises the Board with regard to its members, the regulations Molengraaff Institute, Center for Intellectual Property Law, Uniersity of Utrecht and attomey at De Brauw Blackstone Westbroek Amsterdam Registration Authority" means the entity whih has been accredited by icann n order to register second level doman na the nl cctLD References to ccTLDs or country-code top level domain names are references to the ac TLD attributed to a country accord ing to the Iso 3 166standard
DOMAIN NAME REGISTRATION PROCEDURES AND PRACTICES AND DOMAIN NAME DISPUTE RESOLUTION Madeleine de Cock Buning* III B 2 Introduction This report gives first of all an overview of Dutch registration procedures and practises with regard to domain names (A.). It lists the key players in the Dutch domain name registration procedure and gives a description of the domain name registration procedure. Than a short remark on the qualification of the “right“ in a registered domain name is given and the term and termination of the registration agreement and the licensing and transfer of domain names are described. The second part of this report deals with Dutch domain name dispute resolution (B.). It gives the legal framework for domain name cases and deals with Dutch court proceedings in the field of domain names. 1 Domain Name Registration Procedures and Practices 1.1 Key Players in the Domain Name Registration Procedure 1.1.1 Registration Authority1 The Dutch Registration Authority named Stichting Internet Domeinregistratie (SIDN), registers second level domain names in the .nl ccTLD2 and issues rules regarding domain name registrations. It also sees as its task quality control and the stimulation of standardisation (inter)nationally. SIDN is a private organisation. From its outset, SIDN has the intention to be a non-for-profit organisation. It has chosen as its legal entity foundation (Stichting) which by law is prohibited from distributing its profits amongst directors or members. The Board of Registration Authority SIDN consists of representatives of Internet Service Providers (ISP’s) and external experts. All ISP’s and members of the public that register a domain name can apply to be a member of the Participant’s Council. The Council advises the Board. The organisation of Registration Authority SIDN consists of different parties. The Board is responsible for the policy. It consists of seven (7) persons. The Participant’s Council has introduced four (4) members of the Board. The Board directly appoints three (3) experts. The Bureau is responsible for the preparation and execution of the policy. The actual registration of the domain names is done by the organisation called KEMA which is responsible for all operational activities. The Participant’s Council advises the Board with regard to its members, the regulations * Molengraaff Institute, Center for Intellectual Property Law, University of Utrecht and attorney at De Brauw Blackstone Westbroek Amsterdam. 1. “Registration Authority” means the entity which has been accredited by ICANN in order to register second level domain names in the .nl ccTLD; 2. References to ccTLD’s or country-code top level domain names are references to the ccTLD attributed to a country according to the ISO 3166 standard
DE COCK BUNING and the tariffs For important decisions, the Board is obliged to ask the adv ice of the Participants Council. Its advises are not binding. However, until now all advises of the Participants Council have been adopted In the Netherlands only through an Internet Service Provider that is an Agent, a second level domain name can be registered under in the nl ccTLD. Such an ISP should be a member of the Registration Authority SIDN. An ISP mem ber must be established in a member state of the European Union. An ISP mem ber should abide to the Rules and regulations for members, pay contribution and warrant the Registration Authority SIDN for damages. An Agent can register a second level domain name under ccTLD nl It is this Agent that has the full responsibility to maintain and check the records of Applicants.On occasion the documents kept by the Agents are controlled by SIDN 1. 1.3 Domain Name Applicant Courts or govemmental authorities impose no restrictions, conditions and requirements as to the registration of the domain name. In order to be qualified for the registration of a domain name in the nl ccTLD, the applicant does not have to present a trademark ortrade name Any legal entity, an institute, a company, a self-employed individual or a professional, or a partnership, with a registered office or actual esta blishment in the Netherlands can hold a business domain name. For this registration the following documents are required: a recent extract from the trade register, the register of Foundations, the Register of Associations or any other Register that is formally recognised by SIDN, as proof of Applicants ident ity and its registered office or actual establishment in the Netherlands. The Applicant must sign an indemnification statement as part of the doma in name registration agreement. In this document, the applicant states that the chosen domain name does not infringe on any rights of third parties and that it will indemnify Registration Authority SIDN against all claims that light result from the registration and the use of the doma in name. All damages and costs for Registration Authority SIDN made in this connection are for the Applicant The Applicant must also designate a technical contact. The doma in name has to be registered via an Agent. It is the Agent subm itting the application that has to pay a registration fee and a quarterly fee for the continuation of the registration to Registration Authority SIDN Private persons are authorised to register a doman name in the nl ccTLD.A Agent " means an mtermediary entity that takes care for the actual registration of the second level domain name with the Registration Authorty, Applicant"means the(legal or natural) person who applies for a second level doman name egistration in the. nl ccTLD and sinceholds theregistration ofthat domainname
DE COCK BUNING 2 and the tariffs. For important decisions, the Board is obliged to ask the advice of the Participant’s Council. Its advises are not binding. However, until now all advises of the Participant’s Council have been adopted. 1.1.2 Agent3 In the Netherlands only through an Internet Service Provider that is an Agent, a second level domain name can be registered under in the .nl ccTLD. Such an ISP should be a member of the Registration Authority SIDN. An ISP member must be established in a member state of the European Union. An ISP member should abide to the Rules and regulations for members, pay contribution and warrant the Registration Authority SIDN for damages. An Agent can register a second level domain name under ccTLD .nl. It is this Agent that has the full responsibility to maintain and check the records of Applicants4 . On occasion the documents kept by the Agents are controlled by SIDN. 1.1.3 Domain Name Applicant Courts or governmental authorities impose no restrictions, conditions and requirements as to the registration of the domain name. In order to be qualified for the registration of a domain name in the .nl ccTLD, the Applicant does not have to present a trademark or trade name. Any legal entity, an institute, a company, a self-employed individual or a professional, or a partnership, with a registered office or actual establishment in the Netherlands can hold a business domain name. For this registration the following documents are required: a recent extract from the trade Register, the Register of Foundations, the Register of Associations or any other Register that is formally recognised by SIDN, as proof of Applicants identity and its registered office or actual establishment in the Netherlands. The Applicant must sign an indemnification statement as part of the domain name registration agreement. In this document, the applicant states that the chosen domain name does not infringe on any rights of third parties and that it will indemnify Registration Authority SIDN against all claims that might result from the registration and the use of the domain name. All damages and costs for Registration Authority SIDN made in this connection are for the Applicant. The Applicant must also designate a technical contact. The domain name has to be registered via an Agent. It is the Agent submitting the application that has to pay a registration fee and a quarterly fee for the continuation of the registration to Registration Authority SIDN. Private persons are authorised to register a domain name in the .nl ccTLD. A 3. “Agent” means an intermediary entity that takes care for the actual registration of the second level domain name with the Registration Authority; 4. “Applicant” means the (legal or natural) person who applies for a second level domain name registration in the .nl ccTLD and since holds the registration of that domain name;
DOMAIN NAME REGISTRATION atural person not practising a profession or operating a business who is a resident of the Netherlands can hold a personal domain name. A natural person can hold only one(1)domain name. Required documents a copy of a valid passport, ID card drivers licence ora recent extract from the population register, serving as proof of the Applicants identity and his residence in the Netherlands. The other requirements for registration are the same as for business dom ain names 1.2 Domain name registration procedure 1. 2. 1 Registration The Registration Authority SIDN registers domain names solely on a first-come, first-served basis. The Netherlands has not yet established a legal framework regarding the registration of doman names in the nl ccTLD. However, the registration in the nl ccTLD is restricted to residents of the Netherlands(private domain name)and legal entities, institutes, companies, self-employed individuals or professionals, or partnerships, with a registered office or actual esta blishment in the Netherlands (business domain name) Registration can be done online partially, some written(paper) documents are required though. The registration process itself is automated. Once the Applicant has provided the required documentation(indemnity statement, extract from the Trade Register or Population Register)to the Agent, the Agent sends an electronic application form to Registration Authority SidN. The receipt of this email is automatically confirmed by e-mail by SIDN. In that e-mail the registration is confirmed The Agent checks the documents. The pa per documents that are kept by the Agent are signed in the traditional way. The signed paper documents remain with the Agent at all times, until requested by Registration Authority SIDN The infomation that has to be provided by the Applicant for registration is his postal address, e-mail address, telephone nu number, and the names of the authorised contact person and the technical contact Agents require Applicant to keep the infomation provided in the registration process authority SIdNt provide up-to-date on Applicant The initial registration fee for personal and business domain names is 5 Euro. After registration a quarterly fee of 1, 75 Euro for business domain names and 1, 25 for personal doma in names is required. It is the Agent that has to fulfil the payment obligations to Registration Authority SIDN, not the Applicant. If the Agent is in default in respect of payment of this fee, Registration Authority SidN will inform the Agent and the Applicant that the Applicant will be denied the use of the domain ame and that the registration will be deleted within 30 days, unless the said Agent different Agent to whom the application or the doman name is transferred pay the fee before the end of this period. Registration Authority Sidn reserves the right prior to denal of use and deletion of registration, during this 30-day period to block the doma in name in such a way that its status cannot be modified until payment has
DOMAIN NAME REGISTRATION 3 natural person not practising a profession or operating a business who is a resident of the Netherlands can hold a personal domain name. A natural person can hold only one (1) domain name. Required documents: a copy of a valid passport, ID card, drivers licence or a recent extract from the population register, serving as proof of the Applicants identity and his residence in the Netherlands. The other requirements for registration are the same as for business domain names. 1.2 Domain name registration procedure 1.2.1 Registration The Registration Authority SIDN registers domain names solely on a first-come, first-served basis. The Netherlands has not yet established a lega l framework regarding the registration of domain names in the .nl ccTLD. However, the registration in the .nl ccTLD is restricted to residents of the Netherlands (private domain name) and legal entities, institutes, companies, self-employed individuals or professionals, or partnerships, with a registered office or actual establishment in the Netherlands (business domain name). Registration can be done online partially, some written (paper) documents are required though. The registration process itself is automated. Once the Applicant has provided the required documentation (indemnity statement, extract from the Trade Register or Population Register) to the Agent, the Agent sends an electronic application form to Registration Authority SIDN. The receipt of this email is automatically confirmed by e-mail by SIDN. In that e-mail the registration is confirmed. The Agent checks the documents. The paper documents that are kept by the Agent are signed in the traditional way. The signed paper documents remain with the Agent at all times, until requested by Registration Authority SIDN. The information that has to be provided by the Applicant for registration is his name, postal address, e-mail address, telephone number, facsimile address, telephone number, and the names of the authorised contact person and the technical contact. Agents require Applicant to keep the information provided in the registration process up-to-date information, since they can be required by Registration Authority SIDN to provide up-to-date on Applicant. 1.2.2 Fees The initial registration fee for personal and business domain names is 5 Euro. After registration a quarterly fee of 1,75 Euro for business domain names and 1,25 for personal domain names is required. It is the Agent that has to fulfil the payment obligations to Registration Authority SIDN, not the Applicant. If the Agent is in default in respect of payment of this fee, Registration Authority SIDN will inform the Agent and the Applicant that the Applicant will be denied the use of the domain name and that the registration will be deleted within 30 days, unless the said Agent or a different Agent to whom the application or the domain name is transferred pays the fee before the end of this period. Registration Authority SIDN reserves the right, prior to denial of use and deletion of registration, during this 30-day period to block the domain name in such a way that its status cannot be modified until payment has
DE COCK BUNING been made. If payment is not made in due time, the use of the domain name in question is denied and its registration deleted 1.2.3 Cancellation The doma in name application will be cancelled, if registration was accomplished by means of fraud or deception in the application, if any part of the data stated in the application form drafted by virtue of the Regulations of Registration Authority SIDN turns out to be false or incomplete or the electronic application form has been filled out incorrectly or incompletely. The Applicant must pass on through his Agent to Registration Authority SIdN any change in the registered data for the doma in name in question as soon as possible 1.2.4 Jurisdiction and applicable law In the Rules of Registration Authority sidn there is no requirement for Applicants n the registration process to subm it to the jurisdiction of any particular court of aw in the event of a dispute arising between the holder of a domain name and a third party The applicable law in the event of any dispute arising between the Applicant and a third party perta ining to the registered doma in name is not indicated in any fom that Is to be subm itted during the registration. This will of course depend on the nature of the conflict and the location of the third part 1. 2.5 Privacy The Registration Authority does ma nta in the confidentiality of information provid by the Applicant for domain name registration as much as possible. However, through the whois register(a public data base)certa in personal data can be found Registration Authority SIdN is obliged to mainta in such a whois register on the basis of intemational document RFC1591. Presently the whois register contains name, address, residence of the Applicant, name, telephone number, email address of the technical and authorised contact person. The whois register is searchable only on domain name, not on Applicant. The Applicant of a personal doma in name can request Registration Authority Registration Authority Sidn to hide the data on his name, address and place of residence. In that case the data of the Agent is used in the whois. The personal data is then only available for SIDN 1.3 Sub-domains Apart from the specific registration procedure for personal sublevel domain names there is no specific registration procedure for sub-doma ns in the Netherlands. A cCTLD practice of differentiation into sub-domains can be a useful tool in avoiding intellectual property disputes(particularly in terms of permitting identical names to co-exist) 1.4 Representations and warranties
DE COCK BUNING 4 been made. If payment is not made in due time, the use of the domain name in question is denied and its registration deleted. 1.2.3 Cancellation The domain name application will be cancelled, if registration was accomplished by means of fraud or deception in the application, if any part of the data stated in the application form drafted by virtue of the Regulations of Registration Authority SIDN turns out to be false or incomplete or the electronic application form has been filled out incorrectly or incompletely. The Applicant must pass on through his Agent to Registration Authority SIDN any change in the registered data for the domain name in question as soon as possible. 1.2.4 Jurisdiction and applicable law In the Rules of Registration Authority SIDN there is no requirement for Applicants in the registration process to submit to the jurisdiction of any particular court of law, in the event of a dispute arising between the holder of a domain name and a third party. The applicable law in the event of any dispute arising between the Applicant and a third party pertaining to the registered domain name is not indicated in any form that has to be submitted during the registration. This will of course depend on the nature of the conflict and the location of the third party. 1.2.5 Privacy The Registration Authority does maintain the confidentiality of information provided by the Applicant for domain name registration as much as possible. However, through the whois register (a public database) certain personal data can be found. Registration Authority SIDN is obliged to maintain such a whoisregister on the basis of international document RFC1591. Presently the whois register contains name, address, residence of the Applicant, name, telephone number, email address of the technical and authorised contact person. The whois register is searchable only on domain name, not on Applicant. The Applicant of a personal domain name can request Registration Authority Registration Authority SIDN to hide the data on his name, address and place of residence. In that case the data of the Agent is used in the whois. The personal data is then only available for SIDN. 1.3 Sub-domains Apart from the specific registration procedure for personal sublevel domain names, there is no specific registration procedure for sub-domains in the Netherlands. A ccTLD practice of differentiation into sub-domains can be a useful tool in avoiding intellectual property disputes (particularly in terms of permitting identical names to co-exist). 1.4 Representations and warranties
DOMAIN NAME REGISTRATION A Dutch Applicant has to dechre in the indemnification statement that is required before registration that the details provided for the registration of the domain name are correct and complete and that(s )he has duly read, understood and accepted the provisions conta ined in the current Regulations on Internet Domain Name Registration(NL). The registration Authority SIdN sends an automatic confirmation of the registration by e-mail. By this it is automatically verified that(at least)the email address provided by the Applicant is correct. Occasionally the Registration authority SIdn checks the documents and foms that are held by the Agent with regard to a sp The Applicant also has to guarantee that(s )he possesses the required authorisation to use the domain name for which an application is filed and that neither the domain name nor its use violates the rights of any third party. No additional steps are taken by Registration Authority Sidn to prevent cybersquatting"or" warehousing"of domain names in the nl cctlD 1.5 Quali registered domaIn By registering the Applicant acquires the sole right to use the domain name. This right however is not an absolute right in the sense that the Applicant can act against other use of that name by third parties, unless he has registered his domain name as a tradem ar This obta ined right to use the domain name is however conditional. The Registration Authority SIDN remains in the position to withdraw(cancel)the domain:(e.g. if the Applicant does not comply with the Regulations of SIdN, the registration was accomplished by means of fraud or deception in the application, the Registration uthority sidn has received an authentic copy of a judgement decare provisionally enforcea ble ora non-appeal able finaljudgement to this effect etc.) 1.6 Term and termination ofthe registration agreement The doma n name registration is of indefinite duration upon quarterly payment. The Applicant can terminate the registration agreement if he requests for the cancellation of the registration. The Agent can teminate his registration agreement with the Applicant on his own cond itions(e.g default of payment) The Registration Authority SIdN can terminate the registration ag nt under the ollowing conditions a. Applicant does not comply with the Regulations ofsidN: b. registration was accomplished by means of fraud or deception in the c. the reative Personal domain name tums out to be the Applicants second subsequent Personal domain name(he is allowed only to register one personal domain name) d. the Registration Authority Sidn has received an authentic copy of a judgement declared provisionally enforceable or a non-appealable final judgement to this effect
DOMAIN NAME REGISTRATION 5 A Dutch Applicant has to declare in the indemnification statement that is required before registration that the details provided for the registration of the domain name are correct and complete and that (s)he has duly read, understood and accepted the provisions contained in the current Regulations on Internet Domain Name Registration (NL). The registration Authority SIDN sends an automatic confirmation of the registration by e-mail. By this it is automatically verified that (at least) the email address provided by the Applicant is correct. Occasionally the Registration authority SIDN checks the documents and forms that are held by the Agent with regard to a specific registration. The Applicant also has to guarantee that (s)he possesses the required authorisation to use the domain name for which an application is filed and that neither the domain name nor its use violates the rights of any third party. No additional steps are taken by Registration Authority SIDN to prevent “cybersquatting” or “warehousing” of domain names in the .nl ccTLD. 1.5 Qualification of the “right” in the registered domain name By registering the Applicant acquires the sole right to use the domain name. This right however is not an absolute right in the sense that the Applicant can act against other use of that name by third parties, unless he has registered his domain name as a trademark. This obtained right to use the domain name is however conditional. The Registration Authority SIDN remains in the position to withdraw (cancel) the domain: (e.g. if the Applicant does not comply with the Regulations of SIDN, the registration was accomplished by means of fraud or deception in the application, the Registration Authority SIDN has received an authentic copy of a judgement declared provisionally enforceable or a non-appeal able final judgement to this effect etc.) 1.6 Term and termination of the registration agreement The domain name registration is of indefinite duration upon quarterly payment. The Applicant can terminate the registration agreement if he requests for the cancellation of the registration. The Agent can terminate his registration agreement with the Applicant on his own conditions (e.g. default of payment). The Registration Authority SIDN can terminate the registration agreement under the following conditions: a. Applicant does not comply with the Regulations of SIDN; b. registration was accomplished by means of fraud or deception in the application; c. the relative Personal domain name turns out to be the Applicant’s second or subsequent Personal domain name (he is allowed only to register one personal domain name); d. the Registration Authority SIDN has received an authentic copy of a judgement declared provisionally enforceable or a non-appeal able final judgement to this effect