New '.no' ccTLD dispute resolution policy now in force
A new domain name dispute resolution policy governing the '.no' country-code top-level domain (ccTLD) has come into force in Norway. The new policy is inspired by the Internet Corporation for Assigned Names and Numbers's Uniform Domain Name Dispute Resolution Policy (UDRP) and has seen the creation of a domain name dispute resolution board, which will assist in solving domain name conflicts under the '.no' ccTLD.
The board's authority is limited to domain names registered with NORID - the organization in charge of administrating the '.no' ccTLD - after October 1 2003. All new registrants are required to sign a written statement accepting the board's authority.
Under the terms of the '.no' dispute resolution policy, there are two conditions that must be fulfilled in order for a domain name to be transferred to a complainant (or cancelled at its request). The complainant must prove that (i) it has rights in a name or mark which is identical or similar to the disputed domain name, and (ii) the registrant registered or used the domain name in bad faith.
Although inspired by the UDRP, the '.no' policy features a number of differences, including the following:
- Under the UDRP a complainant must show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights. The '.no' policy also extends protection to trade names, although it is unclear how distinctive or well known the trade name must be in order to allow transfer.
- A complainant need only demonstrate that the disputed domain name is 'similar' to its name or mark, as opposed to 'confusingly similar' under the UDRP and the Norwegian Trademark Act. However, if the domain name is identical or similar to the complainant's name or mark, but cannot be confused with it, then it is unlikely that the bad-faith requirement will be fulfilled.
- The bad-faith requirement can relate to either (i) the registration, and/or (ii) the use of the disputed domain name. The UDRP demands that the domain name has been both registered and used in bad faith.
- The '.no' policy does not contain a provision corresponding to the UDRP's condition that the registrant must have no rights or legitimate interests in the domain name. This is based on the assumption that in most cases where the registrant has rights or legitimate interests in the domain name, the registration and use will not have been carried out in bad faith. (However, it is possible to imagine that the registrant has established or is claiming to have established a seemingly legitimate business for the purpose of justifying an act of cybersquatting.)
Under the '.no' policy, a domain name will be adjudged to have been registered or used in bad faith if it has been registered or used for the purpose of:
- taking unlawful advantage of the complainant's rights;
- harming the complainant's rights;
- preventing the complainant from exploiting its rights; or
- offering the domain name for sale to the complainant or a third party.
In addition, the complainant must prove that the registrant was (i) familiar with the complainant's rights, or (ii) grossly negligent as to those rights.
The new policy seems to limit the board's authority to clear cases of cybersquatting. It remains to be seen whether the board will endeavour to take on more complex disputes (ie, cases where the registrant can provide plausible reasons for registering the domain name). However, it should be noted that the board has a discretional power to refer such cases to the ordinary courts.
Øystein Flagstad, Advokatfirmaet Grette DA, Oslo
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