Canada: Changes to the Canadian Domain Name System: Who Controls Your Domain in Canada?*

One of the most significant developments in electronic commerce in Canada in 2000 related to Canada’s Internet domain name registration system. A new not-for-profit corporation, Canadian Internet Registration Authority (CIRA), was established to operate Canada’s .ca domain name registry. The new CIRA system liberalizes the availability of .ca domain name registrations but will, through "Canadian Presence Requirements" (CPR), maintain a Canadian connection to .ca domain names. The main features of the new CIRA system are:

• Existing .ca registrations may be transitioned to the new CIRA system until (at the time of writing) 30 days after the Operational Transfer Date (OTD) on which CIRA starts to operate the new registry, at the time of writing expected to occur on November 1, 2000.
• To register a new .ca domain name or to acquire a registration by way of transfer, a person must satisfy CPR.
• A person who does not generally satisfy CPR can register specific .ca domain names: if the person has trade-mark rights in Canada which have been registered or otherwise recognized by the Canadian Trade-marks Office; or through a Canadian corporation or other vehicle which satisfies CPR.
• A person will be entitled to register multiple .ca domain names.
• Someone wanting to transition an existing .ca domain name, register new .ca domain names, or acquire a registration through a transfer, will have to do so through a CIRA certified registrar.
• There is likely to be an alternative dispute resolution policy modelled on the ICANN policy, but tailored to Canadian issues and CPR, to attack domain names registered in bad faith.

For copies of all relevant documents in English and French, see the CIRA website at www.cira.ca.

Prior to the change, the .ca domain name registry was operated by a volunteer committee through facilities of the University of British Columbia (UBC). Registration was free. Only about 100,000 names were registered in the UBC system. This was a very low number given Canada’s status as the world’s second largest user of the Internet. There were several reasons for this. First, registration was only available to certain Canadians and a few foreigners. Second, a qualifying person could generally only register one domain name (although in some cases, it could register names in both English and French if its legal name incorporated both). Third, many persons were only entitled to register third level (like widget.on.ca for an Ontario-based person) and fourth level (like widget.ottawa.on.ca.) subdomain names, rather than a second level name (SLD, like widget.ca).

As a result of an agreement among the CIRA, UBC and the government of Canada (GOC) made in May 2000, GOC designated CIRA to manage, operate and control the .ca domain. After public consultation, CIRA determined that the .ca domain space should be developed as a key public resource for the social and economic development of Canadians. Those who wish to register a .ca domain name in the CIRA registry must satisfy certain CPR. While CPR still require a connection to Canada, they will enable a much broader group of persons to register a .ca domain name than under the UBC rules.

To register or to receive a transfer of a .ca domain name, an applicant must satisfy CPR for registrants. In the case of domain names registered in the UBC registry and being re-registered in the CIRA system, the registrant will be deemed to satisfy CPR for the specific domain name already registered. The following is a brief summary of those who may register a .ca domain name in the CIRA registry: A more detailed listing of the conditions may be found at the CIRA website.

• A Canadian citizen
• A permanent resident of Canada
• A legal representative of one of the above
• A Canadian corporation
• A Canadian trust, more than 2/3 of whose trustees meet one of the above criteria
• A partnership, more than 2/3 of whose partners meet one of the above criteria, which is registered in Canada
• An unincorporated organization, association or club: (1) at least 80% of whose members: (a) are ordinarily resident in Canada (if such members are individuals); or (b) are one of the above (if such members are not individuals); and (2) at least 80% of whose directors, officers, employees, managers, administrators or other representatives are ordinarily resident in Canada
• A Canadian trade union or Canadian political party
• A Canadian educational institution or Canadian hospital
• A Canadian not-for-profit public library, archive or museum
• An Indian band or any Inuit, First Nation, Metis or other people indigenous to Canada, any individual belonging to such group, and any collectivity of such Aboriginal peoples
• A Canadian federal, provincial, territorial or local government or federal, provincial or territorial government agency
• A person not meeting any of the foregoing conditions, but who is the owner of a trade-mark which is the subject of a Canadian trade-mark registration, but in this case such permission is limited to a .ca domain name consisting of or including the exact word component of that registered trade-mark
• A person not meeting any of the foregoing conditions, but who is a person at whose request the Registrar of Trade-marks has published notice of adoption of a prohibited mark, but in this case such permission is limited to a .ca domain name consisting of or including the exact word component of that mark

For the purposes of CPR for both registrants and Registrars, an individual is ordinarily resident in Canada if he or she resides in Canada for more than 183 days in the 12 month period immediately preceding the date of the application for registration of the .ca domain name and in each 12 month period thereafter for the duration of the registration (or the date of the application for certification or re-certification).

Those who do not qualify under the general (first 12 conditions set out above) CPR for registrants, but who already own Canadian trade-mark registrations and other marks recognized by the Canadian Trade-marks Office may qualify to register appropriate domain names in the new CIRA system (under one of the last 2 conditions set out above). Non-Canadians who do not otherwise qualify under CIRA’s CPR for registrants may file applications to register trade-marks in the Canadian Trade-marks Office so that they can qualify for registration of domain names in the CIRA system upon registration of the marks. Alternatively, non-Canadians may incorporate Canadian corporations or set up other vehicles which satisfy the CPR for registrants and apply to register names through them in the new system.

The CIRA system requires that any transaction effected in the registry must be initiated through a CIRA certified registrar (Registrar). All fees payable to CIRA for its services will be paid by a Registrar, who may bill its registrants for services. In order to be certified as a Registrar, a person must: (1) qualify under CIRA’s CPR for Registrars, set out below, which are more restrictive than the CPR for registrants; (2) enter a Registrar Agreement; (3) have the requisite technical capacity; and (4) pay certification fees. A business which anticipates registering a large volume of domain names may wish to become a Registrar. The following persons may be certified as a Registrar. A list of Registrars is available at the CIRA website.

• A Canadian citizen who is ordinarily resident in Canada
• A permanent resident of Canada who is ordinarily resident in Canada
• A Canadian corporation that has a place of business in Canada, at which at least one employee or administrative contact of the corporation who is ordinarily resident in Canada regularly and frequently attends to carry out the functions of the Registrar
• A Canadian partnership, each partner of which is one of the above, that has a place of business in Canada at which at least one employee or administrative contact of the partnership who is ordinarily resident in Canada regularly and frequently attends to carry out the functions of the Registrar
• A Canadian educational institution
• A Canadian federal, provincial, territorial or local government or a federal, provincial or territorial government agency.

CIRA assumed the operation of the .ca system on the OTD, when it began to register new .ca domain names in a new registry and under new rules. Prior to the OTD, applications for new registrations were processed through the UBC registry in accordance with its existing rules. During a transition stage, from September 18, 2000 until (at the time of writing) 30 days after the OTD, all registrants of .ca domain names in the UBC system were required to transition their domain names to the CIRA registry by re-registering their names.

Each registrant of .ca domain name registration registered in the .ca registry operated by UBC before the CIRA registry is activated is deemed to satisfy the Canadian Presence Requirements with respect only to an application by such registrant to CIRA to register such .ca domain name.

CIRA reserved the domain name during this transition stage. If, at the end of this period, the existing registrant did not re-register, the domain name was made available to others. A registration transitioned to the CIRA registry prior to the OTD was registered for a minimum of one year, plus the period to the next anniversary date of the original UBC registration. CIRA charged a prorated fee, depending on the anniversary date of the UBC registration.

Registrants of existing third and fourth level subdomain names in the UBC system may upgrade to an SLD if: (1) the subdomain name was registered prior to August 1, 2000; (2) the domain name is not in conflict with any other domain name in the .ca registry at any level; and (3) the SLD conforms to CIRA’s name policies. A registrant can also re-register the subdomain name with CIRA. A registrant who cannot upgrade a subdomain name may register it with CIRA. CIRA will continue to register third and fourth level domain names under provincial and territorial subdomains and official municipal subdomains.

After the OTD, one may conduct a search for the availability of a name in CIRA’s WHOIS search database at CIRA’s website. A person who wishes to register a new .ca domain name must satisfy CIRA’s CPR for registrants and must retain a Registrar to submit a registration request to CIRA. Applications are processed on a "first come, first served" basis, in accordance with CIRA’s registration rules. A domain name may be registered for a period of 1 to 10 years. CIRA charges the Registrar a fee dependent on the registration term, which will initially be set at Cdn. $20 per year. Each Registrar may set its own fees.

If CIRA validates a registration request and the requested domain name is available for registration by an applicant who is not already a registrant, the applicant is required to complete the registration procedure at a secure CIRA website. Alternatively, the applicant may effect the entire transaction in real time through its Registrar’s website. After validation and confirmation of availability is completed by CIRA, the Registrar links the applicant into CIRA’s website to complete the procedure. In either case, an applicant must confirm information and review and accept the terms of CIRA’s Registrant Agreement within a short period thereafter.

Once a person is registered as a registrant in the CIRA system, it will be fairly simple to register domain names through a Registrar. When a request is made to register a new domain name, if the requested domain name is available, the name will be registered and the registrant advised by CIRA. It will be possible for a person who anticipates registering a number of domain names to register as a registrant without a domain name with CIRA through a Registrar before requesting registration of a particular domain name.

To maintain a registration, it must be renewed prior to the expiry of the registration period or within 30 days thereafter. A registrant will be advised by CIRA prior to the expiry of the registration. To renew a registration, the registrant must request renewal through its Registrar.

A registration can be transferred, but a transferee must satisfy CPR for registrants. If the transferee has not registered a domain name, the transferee must enter a Registrant Agreement with CIRA. To initiate a transfer, the registrant must submit a transfer request through its Registrar. If the request is confirmed by CIRA, the transferee’s Registrar must also submit a transfer request. Upon confirmation of this request by the registrant, the domain name will be transferred to the transferee, who becomes the new registrant.

At the time of writing, it is anticipated that CIRA will have a dispute resolution policy (CDRP). A draft CDRP was posted for public consultation on September 29, 2000. It is likely that the CDRP will be modelled on the ICANN uniform dispute resolution policy, but with modifications tailored to Canadian laws and rights and CPR. The CDRP will probably provide a forum where clear cases of bad faith registration (and perhaps use) of domain names can be dealt with relatively quickly and inexpensively. The availability of the CDRP will likely not prevent either a registrant or a complainant from submitting a dispute to a court.

It is anticipated that a registrant will be required to submit to a proceeding under the CDRP in the event that a complainant asserts that: (1) the registrant’s .ca domain name is confusing with a trade-mark, official mark or trade name in which the complainant has rights in Canada; (2) the registrant has no rights in Canada or any other legitimate interest in respect of the domain name; and (3) the domain name has been registered (and perhaps used) in bad faith. The CDRP will likely set out a number of factors to be considered, among others, in assessing if a registrant has registered (and perhaps used) a domain name in bad faith. These will include both factors supporting a finding of bad faith as well as those mitigating against such a finding. It is likely that disputes will be decided under the CDRP and resolved online by a panel of one or three panelists on the basis of statements and documents filed by the parties in accordance with the CDRP and Canadian law.

The remedies available to a complainant under the CDRP are likely to be limited to: (1) cancellation of the registrant’s registration; or (2) transfer of that registration to the complainant. If the CDRP is available to a complainant who does not qualify under CPR, which as of the time of writing was not yet established, a successful complainant may be entitled to request transfer to a nominee who does satisfy CPR. The complainant or the nominee would have to enter into a Registrant Agreement before the transfer would be effected.

*© Sheldon Burshtein 2000. Sheldon Burshtein is a partner of Blake, Cassels & Graydon LLP, Barristers & Solicitors and Patent and Trade-mark Agents. He practises in the Toronto, Ontario, Canada office. He and others at Blakes acted on behalf of Canadian Internet Registration Authority in setting up the new .ca registry, but the retainer permits them to counsel others in relation to the .ca system. The author acknowledges the comments and assistance of his partners Alan Aucoin and Beth Gearing, his colleague Szab Gall, and summer student Ian Hay on an earlier version of this article.