New dispute resolution policy for '.tr' domain names
The Communiqué on the Operation of the Dispute Resolution Mechanism Relating to Internet Domain Names, which applies to the resolution of disputes involving ‘.tr’ domain names, was published in the Official Gazette in August 2013, pursuant to the Ordinance on Internet Domain Names of 2010. Although the communiqué will enter into force only after the Network Information System for ‘.tr’ domain names - TRABIS - has come into operation, it is significant as it introduces a whole new set of rules and policies for domain name disputes in Turkey.
Typical examples of malicious actions mentioned within the communiqué include, but are not limited to:
- seeking to obtain and/or use a domain name to prevent third parties from using their trade names, trademarks, etc, so that the domain name holder can ride on the coat-tails of the trade name or trademark at issue and benefit therefrom; and
- seeking to obtain a domain name in order to transfer or sell it to a third party having rights over the terms contained in that domain name.
These actions constitute prima facie bad-faith purchases and/or uses of the domain names. In order to prevent such purchases/sales, Dispute Resolution Service Providers (DRSPs) and a system to resolve disputes via arbitration will be introduced. However, certain aspects of the communiqué raise some questions that will hopefully be answered in practice.
According to the communiqué, universities, public occupational institutions and international organisations may, under certain conditions, apply to become DRSPs. These entities shall resolve disputes via an arbitrator or an ‘arbitration committee’ consisting of three arbitrators; there must be a minimum of 10 arbitrators within each entity. The parties involved in a dispute must decide whether the case will be heard by a single arbitrator or a committee of three arbitrators. A defendant has 10 days to submit a reply to the complainant’s petition. The parties may in no way communicate with the arbitrator or arbitration committee; all correspondence must be with the DRSP, for example by email or facsimile.
Arbitrators must have a minimum of three years’ experience in IP, trademark, commercial or IT law. According to the communiqué, a dispute may be resolved in three ways - the arbitrator or arbitration committee may:
- cancel the disputed domain name according to the request of complainant;
- transfer the domain name to the complainant; or
- reject the complaint based on the relevant legislation, case law and court decisions.
Arbitrators must be impartial, and the parties have the right to reject the arbitrator(s) hearing their case.
A decision must be given within 15 days of the date on which the parties submitted their petitions, with an additional five days in exceptional cases. This 15-day period is more beneficial to the parties than the one-month period set forth in the Turkish Code of Civil Procedure. The decision must then be published on the DRSP’s website and TRABIS must be notified of the decision. According to the Code of Civil Procedure, parties cannot appeal the decision, but may apply for an action for rescission. Such application may be filed within one month of the receipt of the decision.
Importantly, the communiqué raises some issues:
- It is still not fully clear whether the resolutions are binding or not; and
- It is stated that anything not covered in the communiqué shall be regulated by the Information Technologies and Communications Authority.
With regard to the first point, if the resolutions are binding, then they must be made on legal grounds, meaning that they will amount to a written agreement between the parties. However, this system must not cause the courts to lose their sole authority in deciding on unfair competition and personal rights cases. On the other hand, such procedure would be faster, more practical and cheaper for the parties.
As for the second point, this provision - which seems to shift the legislative power to an executive body - must be interpreted very carefully, as the Turkish legal system does not accept such a shift. Any gaps within a piece of legislation shall be filled only by other laws - in this case, the Code of Civil Procedure, for instance.
Ceylin Beyli and E Ezgi Alpsu, CBL Law Office, Istanbul
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