Questions for submittance to interested parties for comment, October 2009




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Questions for submittance to interested parties for comment, October 2009

.SE (the Internet Infrastructure Foundation) is responsible for the Internet’s Swedish top domain, .se. In 2003, the Foundation implemented new regulations for domain name registration entailing that domain names no longer had to be subjected to prior testing before registration; instead, such testing could take place afterward through an alternative dispute resolution system called alternative dispute resolution (ADR). Through ADR, parties who assert that they have greater entitlement to a domain name can, following a decision by an independent ADR provider, have the domain name transferred to them or have it deregistered.

On July 1, 2006, the National Top-level Domains for Sweden on the Internet Act (2006:24) came into effect. The law stipulates that .SE shall provide an effective procedure for the resolution of disputes related to domain name allocation. In its role as supervising authority, the Swedish Post and Telecom Agency (PTS) has reviewed whether .SE has complied with legal requirements related to allocation and dispute resolution (report: PTS-ER-2009:17, dated March 26, 2009).

ADR is based on the concept that the registrant of a Swedish domain name accepts .SE’s registration terms which regulate the procedure. Accepting these terms is a precondition for registering a domain name. Normally, legal procedures in an ordinary court of law do not encompass the same issues as ADR, and the regulations were created to accommodate the unique situation that arises. However, the procedure is only intended for clear cases of abuse; .SE established this at an early stage when ADR was launched. .SE developed the regulations for ADR, but they are quite similar to those applicable for such other top domains as .com, .org and .net.

The cost of the procedure has been set at a level sufficient to ensure that the burden on the system does not become excessive. However, those with a genuine requirement to have a domain name tested should not hesitate to utilize ADR. The fees are significantly lower than, for example, those involved in the procedures for resolving a simple dispute in an ordinary court of law. .SE subsidizes half the cost of each case by repaying half the application fee if the applicant is successful. The fees also help pay for the independent ADR providers who make decisions in the dispute resolution procedures. A total of 13 ADR providers are employed, and about 50 cases are decided annually. Domain name disputes are not increasing at anywhere near the same rate as domain name registrations.

For a disputed domain name to be transferred to the applicant or deregistered, three conditions must be met: “a claim with a legal basis in Sweden, well-grounded interest and bad faith”. It is the applicant’s responsibility to indicate that the application is justified. A claim may, for example, constitute a brand or a company. A registrant may, in particular, be deemed to have a right or well-grounded interest in a domain name if it is shown that the registrant has prepared to use – or already used – the domain name, for example, in relation to the sales of goods and services on a website associated with the name. A domain name may, in particular, be deemed to have been registered or used in bad faith if it can be shown that the registration was carried out in order to sell the domain name to the party requesting the dispute resolution (or to a competitor to the latter party).

On a regular basis, .SE reviews ADR to ensure that its procedures are efficient, predictable and based on the rule of law. In this context, and due to the opinions expressed by the PTS in its supervisory report, .SE is requesting responses to and comments on the following questions regarding the alternative dispute resolution procedure (ADR).

Questions

The National Top-level Domains for Sweden on the Internet Act (2006:24) stipulates requirements for an “effective procedure for the resolution of disputes regarding domain name allocation.” We ask you to respond to the following questions so that we can obtain opinions from affected stakeholders.



  1. Do you or does your company believe that ADR functions well for its designated purpose, meaning the provision of an efficient method of resolving clear cases of abuse that is based on the rule of law?



  1. Do you or does your company believe that the issues (disputes) that can currently be resolved in the framework of ADR are sufficient, or should it be possible to resolve more types of issues? If you believe that it should be possible to resolve more types of issues, please list these. The issues that can currently be resolved in ADR are indicated at http://www.iis.se/domaner/tvistlosning-atf/reglerna-bakom-atf/.



  1. Do you or does your company believe that the ADR regulations are formulated in a manner that is easy to understand and appropriate to its purpose, or should the regulations be clarified or changed? If this is the case, how should the changes be formulated?



  1. .SE provides information about the ADR on its website at http://www.iis.se/domaner/tvistlosning-atf/ . Do you or does your company believe that this information is sufficiently clear and comprehensive, or should more extensive, clearer information be provided? Please elaborate.



  1. The current cost to apply for a dispute resolution is SEK 10,000 including VAT in cases where the dispute is to be resolved by one (1) ADR provider. If the applicant requests three (3) ADR providers, the cost is SEK 20,000 including VAT. If the applicant wins the ADR case, he or she will be repaid half the application fee. What opinions do you or does your company have regarding the amount of the application fee? Is the current level sufficient to secure the purpose of the ADR, or is it too high or too low?



  1. In report PTS-ER-2009:17, issued in March 2009, the PTS proposed that the party who loses a dispute resolution procedure should pay all costs (all fees), just as the losing party usually does in a legal dispute. What opinions do you or does your company have regarding the party who should pay the entire cost of the application fee – should it be the applicant or the losing party? Do you or does your company agree that a registrant (counterparty) would be more likely to present an ADR application if there is a risk that the registrant will be obliged to pay the entire cost of the application fee? Please comment.



  1. For certain other top domains, a procedure that differs from ADR has been implemented that entails a lower cost and in which only a rapid, summary decision is made, for example in relation to registrations that are obviously intended to infringe on another party’s well-known brand. Such a procedure would still result in a binding decision, but with the opportunity for an appeal to the current ADR. Do you or does your company believe that such a procedure would be useful? If so, what do you or does your company believe constitutes a reasonable cost level for a summary procedure?



  1. .SE could implement voluntary mediation as an alternative and a complement to ADR. An intermediary could, for example, explain the regulations in detail so that the party or parties could assess the opportunities and risks of proceeding to ADR before submitting an application. The mediator would not decide cases, but would provide balanced advisory services. Do you feel that .SE should implement voluntary mediation? If so, what do you or does your company believe constitutes a reasonable cost level for mediation?



  1. When a party demands the deregistration of a domain name, the domain name is, after a period of time, released for new registration. If the domain name were instead always transferred to the applicant in ADR, the applicant would be free to decide whether the domain name should be deregistered or renewed. Do you or does your company believe that the alternative in which a party can demand the deregistration of a domain name after ADR should be abolished to prevent a domain name from being released for new registration after a period of time?



  1. Do you or does your company believe that .SE should implement the possibility for a party to request, when applying for ADR, that the disputed domain name be blocked from new registration, which would entail that the domain name would be placed on a list of blocked domain names for a given period of time? If so, how long should the time period be?



  1. In conclusion, do you or does your company feel that there is any part of ADR that should be changed in this context or otherwise? Please comment.

______________________

Bank” as a part of domain names

In its supervisory report, PTS-ER-2009:17, the Swedish Post and Telecom Agency (PTS) posed questions regarding the use of the term “bank” in domain names. The PTS’s assessment is that the term should only be used by financial institutions to indicate banking or financial operations. However, in accordance with .SE’s regulations, anyone may register a domain name that includes the letter combination “bank”. Currently, if a bank or equivalent institution does not accept such a registration, it must apply for ADR to deregister or transfer the domain name.
If the term “bank” is used in contravention of the Swedish Banking and Financing Business Act (2004:297), regardless of whether such use occurs via the Internet using a specific domain address or in another form, the use of the term may be called into question by the Swedish Financial Supervisory Authority.
The PTS report led to discussions between .SE and the PTS. The use of the term “bank” in domain names has been seen as an important issue. In June 2009, for example, .SE sent a statement to the PTS in which it outlined alternative solutions (see attachment 1), and the discussions continue.

To obtain better supporting documentation on whether special regulations should apply to the use of the term “bank” in domain names, .SE is requesting responses to the following questions:




  1. Do you or does your company feel that it is problematic or risky that anyone can register a domain name that includes the letter combination “bank”? Examples of such domain names include “blodbank.se,” a surname that includes the letter combination “bank,” or a misspelling of “swedbank.se.” Is it a problem or a greater risk if the content associated with the domain name contains bank-related information?



  1. Do you or does your company believe that .SE’s current regulations, in combination with Swedish legislations, address potential problems that could arise if an unauthorized party registers (and uses) a domain name that includes the term “bank”? If not, what deficiencies exist and how can they be corrected?



  1. Should .SE’s regulations in relation to domain names containing the letter combination “bank” be changed? Yes/No.



  1. If your response to Question 3 was “Yes”, how do you feel that the regulations should be changed? See, for example, the proposals included in attachment 1). Would you or your company like to suggest other proposals than those presented in attachment 1?



  1. Should ADR be changed – as a relevant measure for the problems related to the use of the term “bank” in domain names – and new regulations implemented stipulating that the use of domain names in contravention with financial legislation constitutes grounds for deregistration even if the domain name cannot be confused with the characteristics of another party, such as a bank? One possibility is that the Swedish Financial Supervisory Authority could be authorized to deal with the matter. Is there another organization that could take on such a role?



  1. Should already registered domain names be encompassed by potential new regulations, or should the regulations only apply to new registrations? If you or your company believe that already registered domain names should be covered, should all domain names containing the term “bank” be deregistered?



  1. If a form of testing of the occurrence of the letter combination “bank” is implemented, is it then sufficient for a review to take place after a claim is filed (with .SE) by a party who deems that the registration was inappropriate?



  1. One method of handling the testing of the occurrence of the letter combination “bank” would be to establish a special board to take responsibility for the testing. Do you or does your company feel that this is a good solution? If a special board of experts is appointed, do you or does your company feel that it is sufficient to staff it with a selection of existing ADR providers? If not, what opinions do you or does your company have regarding who should be included on this board? Who do you feel is most suited to carry out such testing?



  1. Should it be possible to appeal a negative decision after a review? If so, which instance should handle the appeal?

On a regular basis, .SE (the Internet Infrastructure Foundation) reviews ADR to ensure that its procedures are efficient, predictable and based on the rule of law. In this context, and due to the opinions expressed by the PTS in its supervisory report, .SE is requesting responses to and comments on a number of questions regarding the alternative dispute resolution procedure (ADR).

.SE must receive the responses not later than December 2, 2009, by e-mail to remissvar@iis.se. We would appreciate it if you would formulate your positions clearly and, to the extent possible, provide tangible proposals.



For questions or clarifications of the proposal, please contact remissvar@iis.se.


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