Ireland: Registration of Domain Names in IE: Review of the Revised Requirements Draft Proposal

Last Updated: 25 November 1998

We have had an opportunity of reviewing the draft proposals published in July of this year in relation to the administration and allocation of domain names in the .ie registry and we have two sets of comments in respect thereof.

The first set of comments relates to the regulation of domain name space in general, including issues which should be addressed in the future while the second set of comments relates to particular clauses of the draft proposals.

General Comments

Although it is not entirely clear whether or not there are any detailed regulations outlining the administration of the second level domain names in the .ie registry (apart from the general policy statements available on the .ie registry website) it is our opinion that any rules or guidelines in relation to domain name registrations should be drafted bearing in mind the range of possible disputes which could arise together with the conflicting interests of the parties involved.

Our concerns centre around the fact that domain names are becoming a valuable commodity and in some respects in relation to businesses they are in fact a business asset. It has been noted in the IAHC (Internet Ad Hoc Committee), generic top level domain name Memorandum of Understanding (gTLD-MOU) published this year that Internet domain name space is a public resource and should be subject to public trust. We also refer to the ?Domain Name System and Structure Delegation Memorandum? March 1994, which states that administrators of TLDs are performing a public service on behalf of the Internet community and also that the designated manager of a TLD is a trustee for the delegated domain and has a duty to serve the community. This memo has no binding legal status and it is purely informational in character however it is worth noting that it is referred to in the draft proposals of the .ie policy review group.

Having regard to the above we are of the opinion that it is necessary to ensure there are regulations in place which provide for a Registrar of the registry together with some form of appeals procedure in order that decisions of the Registrar may be reviewed. This would implement a more transparent system of allocating second level domain names and it would further ensure that the public trust discussed above is not in any way misplaced.

Bearing in mind that domain names constitute a valuable commodity it could be argued that people hold a property right in their domain name. For this reason, a decision of the registry to grant or refuse applications for registration could be regarded as decisions of a quasi-legal nature. Given the nature of these decisions and the potential effect on individuals and businesses we believe it is necessary to set out principles or guidelines which should be used to assist the registry in making decisions.

The memorandum of understanding adopted by the IAHC earlier this year deals with the allocation of second level domain names within international top level domain names. This memorandum sets out various guidelines and principles which should be adopted in order to minimise disputes arising. It would be very helpful to incorporate these principles and guidelines in some manner into the proposed procedures of the .ie registry. This would provide some degree of certainty to applicants and it would promote public confidence in the system.

Furthermore in the event that any disputes arise, whether they are disputes regarding domain names only or domain names and trade marks, we believe it would be useful to have a type of mediation facility for the settlement of such disputes. The Domain Name System and Structure Delegation Memo referred to above clearly states that's in case of disputes between domain name registrants as to the rights to a particular name, the registration authority shall have no role or responsibility other than to provide the contact information to both parties.

In our opinion this statement over simplifies the issue and fails to recognise that for the reasons outlined below Registrars will inevitably become involved in litigation regarding such disputes.

Finally it should be noted that the adoption of rules or regulations taking account of the above points should be considered seriously in light of the potential liability of domain name Registrars as joint tortfeasors in trademark and domain name disputes. If a litigant wanted to obtain an injunction to restrain the use of a particular domain name which infringed their trademark, for practical purposes the litigant may join a domain name Registrar as they would be able to enforce any such injunction directly with the domain name Registrar. The potential liabilities of domain name Registrars should be borne in mind regarding any future policies or administrative procedures to be adopted by the registry.

Specific Comments in relation to Draft Proposals

Clause 2 We see that no reference is made in this clause to educational or research institutions. Notwithstanding that these bodies may be eligible to apply for domain name registration under clause 2.1 (g) it is our opinion that such institutions merit separate mention here. It is also the case that such institutions could obtain registration under the top level domain (TLD) known as the edu domain, however a name can only be registered under one TLD and accordingly it would not be possible to register under the edu and the .ie registry at the same time.

Clause 3.4 We note that it is not possible to propose a domain name for registration if the same name is the subject of a registration request currently under consideration by the registry. There is no clause to deal with the event that the domain name which is under consideration by the registry may in fact be rejected for the applicant in question and it would then be open to the second applicant to proceed with their application. It is necessary to deal with this eventuality in more detail.

Clause 4.1.2 Under this clause the domain name will be registered provided the proposed domain does not constitute a name which in the view of the registry would be likely to be misleading if registered in the name of the applicant.

This phrase would be likely to be misleading? appears also in clause 4.2.2 and 4.3.2. This clause is too vague to be of any assistance to the registry in making their decisions and furthermore the vagueness of the clause may give rise to confusion and to claims being made regarding the basis upon which registrations have been refused. It is necessary to expand on the meaning of this clause by explaining the term misleading i.e. misleading in what manner, misleading to whom.

Clause 4.2 There should be a clause in this category regarding corporate names to state that not only should the applicant be incorporated but also that it must not be dissolved.

Clause 4.2.4 Together with the requirement to provide a Certificate of Incorporation the applicant should be required to provide a Change of Name Certificate where appropriate.

Clause 4.3.2 We refer to the phrase correspond closely and its use in this clause and in clause 4.6.2. The concept behind this phrase needs to be defined and more strictly worded. We would suggest referring to the fact that the proposed domain name must be identical to the registered trade mark or the name by which the Applicant is properly known and the only things which may be omitted will be those characteristics, which by virtue of the technical constraints of domain name representation cannot possibly be represented in such a form. In the event that a registered trademark or the name by which the applicant is properly known is too long for domain name purposes then an appropriate abbreviation should be allowed.

Clause 4.3 Regarding this category concerning registered trade marks, reference should be made to a condition which states that the registration of the trade mark must still be valid i.e. the registration period must not have expired.

Clause 4.5.2 This states that the proposed domain name must consist of the name under which the Applicant was established. Perhaps it would be advisable to insert a clause in this section to state that it can only consist of the name under which the Applicant was established or acceptable abbreviations thereof, with no additional characters in the name. This observation is also applicable to registrations under clauses 4.1.2 (personal names), 4.2.2 (Corporate names) and 4.4.2 (registered business names).

Clause 6.1.1 In our opinion a utility bill in the applicant's name, even if it is dated not earlier that three months prior to the time of application, is not necessarily proof of trading and more reliable proof of trading should be required. Perhaps an invoice would be better proof.

Miscellaneous

Regarding the documentary evidence to be submitted to substantiate the various claims to be entitled to register a domain name, We would advise that together with providing the necessary documentation applicants should be required to prove that the name they are registering (whether it is a registered business name, name of acorporation or a trademark) is in current use by them or alternatively evidence of intended user in the near future.

This article was intended to provide general guidelines. Specialist advice should be sought about specific facts.

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