29 Rights Protection Mechanisms

Prototypical answer:

Rights protection mechanisms are a part of abuse prevention mechanisms. As already mentioned in the answer to Evaluation Question #28, abuse prevention and mitigation under .amsterdam will be nearly entirely outsourced to the applicant’s back end provider SIDN, the .NL-registry, being worldwide the 7th largest TLD with almost 5 million domain registrations.

SIDN’s support desk will act as the single abuse point for .amsterdam as is described in detail in the answer provided for Evaluation Question #28. SIDN’s support desk with a total number of 14 staff is experienced in working with right protection mechanisms and supporting rights holders, registrars and registrants when they are confronted with right infringement matters and procedures. SIDN provides these services under the registry back end services contract with .amsterdam.

With regard to rights protection .amsterdam will implement all currently by ICANN prescribed measures by holding a sunrise before the start of the landrush, provide a Trademark Claims Service available during the landrush and 60 days after the opening of TLD for registrations, and supporting UDRP and URS. Next to that .amsterdam will implement a variant of the current .NL- ‘Dispute Resolution System for .NL Domain Names’. This resolution procedure (a UDRP variant administered by WIPO) serves as a mechanism for settling disputes that concern trademarks, trading names, the names of governmental and other bodies and personal names. Disputes are settled by impartial legal experts, who are specialists in this field. The Dutch and English language are supported in this resolution procedure.

.amsterdam will evidently adhere to any other or any amended rights protection mechanisms (RPMs) that may be mandated by ICANN. .amsterdam will include all ICANN mandated and independently developed RPMs in the registry registrar agreement. .amsterdam will not mandate any rights holder to use any other trademark information, aggregation, notification or validation service in addition to or instead of the Trademark Clearinghouse.

.amsterdam will further comply with the dispute resolution mechanisms (PDDRP and RRDRP) and implement and adhere to any remedies ICANN imposes following a determination by a panel under the DRPs and will accept to be bound by such determinations.

In following section, the different measures and the role of the registry operator are described in more detail.

29.1 Sunrise

.amsterdam will hold a sunrise of at least 30 days before the landrush period. In the sunrise period .amsterdam will give holders of a trademark or tradename protected under Dutch law the opportunity to pre-register the corresponding domain name that is an exact match of the trademark⁄tradename. In addition the rights holder will be given an opportunity to pre-register up to 5 ‘typo’s’ of the trademark⁄tradename.

.amsterdam will for the sunrise make use of a reputable sunrise service provider who will assist .amsterdam with the drafting of the actual sunrise policy and also perform the validation of the claimed rights. .amsterdam will further be assisted in the sunrise by its back end provider SIDN which has held a successful sunrise at the time of the introduction of its numerical domains in 2008.

The sunrise will, as is mandated by ICANN, make use of the services of the yet to be set up Trademark Clearinghouse. During the sunrise period trademark holders in the Clearinghouse will receive a notification if someone is seeking a sunrise registration for a domain name that is an Identical Match (conform the definition in current Trademark Clearinghouse documentation) of a trademark registered in the Trademark Clearinghouse. The .amsterdam Sunrise Policy will have clear sunrise eligibility requirements which will include the minimum as described in the current Trademark Clearinghouse document (11 January 2012) under section 6.2.3. .amsterdam will, for domain names applied for via the sunrise period and based on trademarks registered in the Trademark Clearinghouse, use the data available via the Clearinghouse to verify if the trademark is eligible. The Sunrise Policy will further include a Sunrise Dispute Resolution Policy allowing challenges at the minimum on the basis of the four grounds described in the current Trademark Clearinghouse document (11 January 2012) under section 6.2.4.

29.2 Trademark Claims Service

During the projected landrush period and during the first 60 days after the start of the availability of the shared registry system for general registrations, the .amsterdam will offer a Trademark Claims Service in cooperation with the Trademark Clearinghouse and its registrars according to the then available procedures. During this period all requested registrations will be checked by .amsterdam for Identical Matches (conform the definition in the current Trademark Clearinghouse document) with trademarks registered in the Trademark Clearinghouse. If such a match is detected .amsterdam will send a Trademark Claims Notice in Dutch and English via its sponsoring registrar to the prospective registrant to inform him about the match and make sure that by still registering the name the registrant warrants the reception of the notice, that he has understood it and that, to the best of his knowledge, the registration or use of the domain will not infringe on the specific trademark rights.

Under the Registry Registrar Agreement the registrar will be obliged to promptly notify the trademark holder via the registrar’s interface with the Trademark Clearinghouse after the registration is effectuated.

29.3 Unified Domain Name Dispute Resolution Policy (UDRP)

.amsterdam supports the UDRP procedure, which is one of the formal consensus policies, and will oblige registrars via the Registry Registrar Agreement to support it and to have the registrants accept the applicability of the UDPR via the Registry Registrant Agreement.

29.4 Uniform Rapid Suspension

The support organization for the .amsterdam, which will be made available through SIDN as the backend service provider, will handle URS notices received from the URS providers in line with the final URS rules. As the current draft URS Rules require the registry to lock the domain within 24 hours after the reception of the notice, the registry will implement a procedure to make sure that these notices are timely signaled, the domains in question are locked via the SRS and the URS Provider receives a Notice of Lock. The registry will then await further notices from the URS Provider and act accordingly by or:
a. immediately unlocking the domain; or
b. suspending the domain, redirecting the name servers for the domain to the webpage provided by the URS Provider and publish in the Whois that the domain name will not be able to be transferred, deleted or modified for the life of the registration.

The registry will do the same if it receives notice of the outcome of an appeal.

The registry will not renew the registration of a, because of the outcome of a URS procedure suspended, domain name except if it receives a request from the registrar for the domain name to renew the domain for one year upon a request by the successful complainant. Please note that the actual and detailed implementation will depend on the final URS rules.

29.5 Dispute Resolution System for .amsterdam Domain Names

SIDN has implemented in 2008 its own amended version of the UDRP as a successor to its earlier formal arbitration procedure. This UDRP based system is administered by WIPO and serves as a mechanism for settling disputes that concern domain names that, according to the complainant, infringe trademarks, trading names, the names of governmental and other bodies and personal names. The scope is therefore broader than the UDRP. Disputes are settled by impartial legal experts, who are specialists in this field. The Dutch and English language are supported in this resolution procedure.

The only available remedy under the current regulations is a change of registrant, whereby the complainant becomes the registrant instead of the respondent.

The grounds for a successful complaint are stated in article 2 of the regulations of the ‘Dispute Resolution System for .NL Domain Names’:

2.1. Complaints may be submitted by any party which asserts and establishes that:
a. a domain name is identical or confusingly similar to:
I. a trademark, or trade name, protected under Dutch law in which the complainant has rights; or
II. a personal name registered in the General Municipal Register (‘gemeentelijke basisadministratie’) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the complainant undertakes public activities on a permanent basis; and
b. the registrant has no rights to or legitimate interests in the domain name; and
c. the domain name has been registered or is being used in bad faith.
The procedure does only offer a decision by a single panelist and there is no appeal. SIDN locks the domain name during the procedure and if the complainant wins the procedure, SIDN will accept a requested transfer of a domain name from the registrant to the complainant. SIDN will however wait for a period of 10 days to give the losing registrant the opportunity to commence a court case in The Netherlands against the complainant in relation to the registration of the domain name at issue. In the latter case SIDN will not cooperate with a transfer request and await the outcome of the court case.

Administration costs and panelist fees currently are € 1,500 for 1 – 5 names and € 2,000 for 6 – 10 domain names and will have to be paid by the complainant. WIPO handles around 80 cases per year under this .nl procedure.

The current version of the regulation is attached to this answer (‘Q29-DRP_NL’). .amsterdam aims to have a similar procedure available for rights holders as the UDRP only protects trademark holders and .amsterdam feels it very important to also provide an extra protection mechanism for other rights holders, such as governmental organizations, holders of trade names that do not have a trademark (local SME’s) and (famous) persons. The current .nl procedure will therefore be amended by .amsterdam in close consultation with SIDN and WIPO. One of the elements to be discussed is the relation and possible conjunction with the UDRP.

29.6 Domjur.nl

SIDN publishes since 2001 legal rulings and articles about court and ADR cases involving domain names in The Netherlands (many on the basis of rights infringement claims) on the website http:⁄⁄www.domjur.nl. The information on this site (in Dutch only) gives a nearly complete overview of all domain name related cases in the Netherlands since the upcoming of the internet and is aimed primarily at lawyers, but there is also information that may be of interest to ‘lay’ visitors.

Summaries of all relevant rulings are provided on the website. Rulings with particular legal significance are also annotated by leading internet lawyers. The DomJur website is maintained jointly by SIDN and the Tilburg Institute for Law, Technology, and Society (TILT) of Tilburg University.

DomJur will of course also publish any domain name cases that might arise under .amsterdam and will be a good source for (lawyers of) rights holders to learn about the whereabouts of domain name disputes.

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