Amended proposal for ‘.eu’ class complaint issued

European Union
The Czech Arbitration Court (CAC) has submitted an amended version of its proposal to introduce the class complaint to the ‘.eu’ procedure. The CAC is the sole provider of ‘.eu’ domain name dispute resolution services.
In the near future, the CAC will also administer disputes brought under the Uniform Domain Name Dispute Resolution Policy (UDRP). The Internet Corporation for Assigned Names and Numbers (ICANN) introduced the UDRP in 1999 as a remedy for simple and obvious cases of cybersquatting. The UDRP applies to several top levels such as ‘.com’, ‘.net’ and ‘.info’, but not to the top level ‘.eu’. There are currently three approved UDRP providers: 
The first two are the main providers, with a combined total of nearly 3,500 complaints filed before them last year.
In early 2007 the CAC submitted its first application to ICANN to be approved as an UDRP provider. Along with this application, the CAC sought to introduce new features to the UDRP procedure, one of which was the class complaint. A class complaint is a complaint concerning several domain names to be filed on behalf of several complainants against one registrant.
The proposed class complaint evoked several comments, among others from WIPO. In a letter to ICANN dated November 29 2007, WIPO stated that joint complaints brought by complainants with differing trademarks, legal locations and interests raised a series of legal and practical issues under the existing UDRP in relation to:
  • complaint compliance and notification;
  • panel appointment; and
  • enforcement. 
In WIPO's view, the UDRP system was mainly designed for single parties and was not drafted to deal with multiple numbers of rights holding parties. 
While the introduction of the class complaint into the UDRP procedure remains a subject of much debate, on February 5 2008 the CAC launched a first public comment period on its proposal to apply the class complaint to the ‘.eu’ procedure. Several comments were received in response to the proposal. Upon consideration of these comments, the CAC submitted an amended version for public comment on May 23 2008.
One of the changes made to the second proposal concerned the reference to the person entitled to represent several complainants, which was changed from "a single person" to "a single authorized representative". The definition of a ‘class complaint’ now reads as follows:
"a single complaint filed against a single domain name holder in regard to multiple disputed domain names with the same language of proceeding, filed by a single authorized representative acting on behalf of two or more complainants and requesting separate relief where each complainant requests relief in relation to a number, but not all, of the disputed domain names joined in the class complaint."
As for the conditions required to bring a class complaint, the CAC's proposal stipulates as follows:
"It is possible to file a class complaint provided that the following conditions are met:
  • the class complaint is based on legal arguments applicable equally or substantially in the same manner to all the disputed domain names;
  • the person representing several different complainants joined in the class complaint must provide evidence that [he or she] is authorized to act on behalf of each of the complainants; and
  •  for the avoidance of doubt, the panel can order transfer of any of the disputed domain name(s) only to the individual complainant on which behalf such transfer was requested in the class complaint, in accordance with the Alternative Dispute Resolution Rules and the Alternative Dispute Resolution Supplemental Rules."
The concept of the class complaint is quite innovative, as there is no requirement that the complainants be affiliated with each other in any way. It will be interesting to see whether the ‘.eu’ class complaint will constitute a credible precedent to support implementation of class complaints under the UDRP.
The possibility for rights holders to bring a joint complaint to fight serial cybersquatters could prove an interesting option, which is not currently included in the UDRP or offered by the existing UDRP providers. As the UDRP stands, there is very little guidance on the issue of multiple complainants. However, Article 10(e) of the UDRP Rules provides that "a panel shall decide a request by a party to consolidate multiple domain name disputes in accordance with the policy and these rules". The panel has therefore wide discretion in assessing whether valid reasons exist to consolidate multiple complaints.
Previous UDRP decisions where such joint complaints were accepted tended to be justified by the existence of a certain relationship between the respective complainants. In general, complaints jointly brought by a parent company and its subsidiaries stood the test (for example, see NFL Properties Inc v Rahe).
David Taylor and Brechtje Lindeboom, Lovells LLP, Paris

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