COMMISSION REGULATION (EC) No 874/2004
of 28 April 2004
laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the .eu Top Level Domain (1), and in particular Article 5(1) thereof,
Having consulted the Registry in accordance with Article 5(1) of Regulation (EC) No 733/2002,
Whereas:
(1)
The initial implementation stages of the .eu Top Level Domain (TLD), to be created pursuant to Regulation (EC) No 733/2002, have been completed by designating a legal entity, established within the Community to administer and manage the .eu TLD Registry function. The Registry, designated by Commission Decision 2003/375/EC (2), is required to be a non-profit organisation that should operate and provide services on a cost covering basis and at an affordable price.
(2)
Requesting a domain name should be possible through electronic means in a simple, speedy and efficient procedure, in all official languages of the Community, through accredited registrars.
(3)
Accreditation of registrars should be carried out by the Registry following a procedure that ensures fair and open competition between Registrars. The accreditation process should be objective, transparent and non-discriminatory. Only parties who meet certain basic technical requirements to be determined by the Registry should be eligible for accreditation.
(4)
Registrars should only accept applications for the registration of domain names filed after their accreditation and should forward them in the chronological order in which they were received.
(5)
To ensure better protection of consumers' rights, and without prejudice to any Community rules concerning jurisdiction and applicable law, the applicable law in disputes between registrars and registrants on matters concerning Community titles should be the law of one of the Member States.
(6)
Registrars should require accurate contact information from their clients, such as full name, address of domicile, telephone number and electronic mail, as well as information concerning a natural or legal person responsible for the technical operation of the domain name.
(7)
The Registry policy should promote the use of all the official languages of the Community.
(8)
Pursuant to Regulation (EC) No 733/2002, Member States may request that their official name and the name under which they are commonly known should not be registered directly under .eu TLD otherwise than by their national government. Countries that are expected to join the European Union later than May 2004 should be enabled to block their official names and the names under which they are commonly known, so that they can be registered at a later date.
(9)
A Member State should be authorised to designate an operator that will register as a domain name its official name and the name under which it is commonly known. Similarly, the Commission should be authorised to select domain names for use by the institutions of the Community, and to designate the operator of those domain names. The Registry should be empowered to reserve a number of specified domain names for its operational functions.
(10)
In accordance with Article 5(2) of Regulation (EC) No 733/2002, a number of Member States have notified to the Commission and to other Member States a limited list of broadly-recognised names with regard to geographical and/or geopolitical concepts which affect their political or territorial organisation. Such lists include names that could either not be registered or which could be registered only under the second level domain in accordance with the public policy rules. The names included in these lists are not subject to the first-come first-served principle.
(11)
The principle of first-come-first-served should be the basic principle for resolving a dispute between holders of prior rights during the phased registration. After the termination of the phased registration the principle of first come first served should apply in the allocation of domain names.
(12)
In order to safeguard prior rights recognised by Community or national law, a procedure for phased registration should be put in place. Phased registration should take place in two phases, with the aim of ensuring that holders of prior rights have appropriate opportunities to register the names on which they hold prior rights. The Registry should ensure that validation of the rights is performed by appointed validation agents. On the basis of evidence provided by the applicants, validation agents should assess the right which is claimed for a particular name. Allocation of that name should then take place on a first-come, first-served basis if there are two or more applicants for a domain name, each having a prior right.
(13)
The Registry should enter into an appropriate escrow agreement to ensure continuity of service, and in particular to ensure that in the event of re-delegation or other unforeseen circumstances it is possible to continue to provide services to the local Internet community with minimum disruption. The Registry should also comply with the relevant data protection rules, principles, guidelines and best practices, notably concerning the amount and type of data displayed in the WHOIS database. Domain names considered by a Member State court to be defamatory, racist or contrary to public policy should be blocked and eventually revoked once the court decision becomes final. Such domain names should be blocked from future registrations.
(14)
In the event of the death or insolvency of a domain name holder, if no transfer has been initiated at the expiry of the registration period, the domain name should be suspended for 40 calendar days. If the heirs or administrators concerned have not registered the name during that period it should become available for general registration.
(15)
Domain names should be open to revocation by the Registry on a limited number of specified grounds, after giving the domain name holder concerned an opportunity to take appropriate measures. Domain names should also be capable of revocation through an alternative dispute resolution (ADR) procedure.
(16)
The Registry should provide for an ADR procedure which takes into account the international best practices in this area and in particular the relevant World Intellectual Property Organization (WIPO) recommendations, to ensure that speculative and abusive registrations are avoided as far as possible.
(17)
The Registry should select service providers that have appropriate expertise on the basis of objective, transparent and non-discriminatory criteria. ADR should respect a minimum of uniform procedural rules, similar to the ones set out in the Uniform Dispute Resolution Policy adopted by the Internet Corporation of Assigned Names and Numbers (ICANN).
(18)
In view of the impending enlargement of the Union it is imperative that the system of public policy rules set up by this Regulation enter into force without delay.
(19)
The measures provided for in this Regulation are in accordance with the opinion of the Communications Committee established by Article 22(1) of Directive 2002/21/EC of the European Parliament and of the Council (3),
HAS ADOPTED THIS REGULATION:
CHAPTER I SUBJECT MATTER
Article 1
Subject matter
This Regulation sets out the public policy rules concerning the implementation and functions of the .eu Top Level Domain (TLD) and the public policy principles on registration referred to in Article 5(1) of Regulation (EC) No 733/2002.
CHAPTER II PRINCIPLES ON REGISTRATION
Article 2
Eligibility and general principles for registration
An eligible party, as listed in Article 4(2)(b) of Regulation (EC) No 733/2002, may register one or more domain names under .eu TLD.
Without prejudice to Chapter IV, a specific domain name shall be allocated for use to the eligible party whose request has been received first by the Registry in the technically correct manner and in accordance with this Regulation. For the purposes of this Regulation, this criterion of first receipt shall be referred to as the ‘first-come-first-served’ principle.
Once a domain name is registered it shall become unavailable for further registration until the registration expires without renewal, or until the domain name is revoked.
Unless otherwise specified in this Regulation, domain names shall be registered directly under the .eu TLD.
Domain name registration shall be valid only after the appropriate fee has been paid by the requesting party.
Domain names registered under the .eu TLD shall only be transferable to parties that are eligible for registration of .eu domain names.
Article 3
Requests for domain name registration
The request for domain name registration shall include all of the following:
(a)
the name and address of the requesting party;
(b)
a confirmation by electronic means from the requesting party that it satisfies the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733/2002;
(c)
an affirmation by electronic means from the requesting party that to its knowledge the request for domain name registration is made in good faith and does not infringe any rights of a third party;
(d)
an undertaking by electronic means from the requesting party that it shall abide by all the terms and conditions for registration, including the policy on the extra-judicial settlement of conflicts set out in Chapter VI.
Any material inaccuracy in the elements set out in points (a) to (d) shall constitute a breach of the terms of registration.
Any verification by the Registry of the validity of registration applications shall take place subsequently to the registration at the initiative of the Registry or pursuant to a dispute for the registration of the domain name in question, except for applications filed in the course of the phased registration procedure under Articles 10, 12, and 14.
Article 4
Accreditation of registrars
Only registrars accredited by the Registry shall be permitted to offer registration services for names under the .eu TLD.
The procedure for the accreditation of registrars shall be determined by the Registry and shall be reasonable, transparent and non-discriminatory, and shall ensure effective and fair conditions of competition.
Registrars are required to access and use the Registry's automated registration systems. The Registry may set further basic technical requirements for the accreditation of registrars.
The Registry may ask registrars for advance payment of registration fees, to be set annually by the Registry based on a reasonable market estimate.
The procedure, terms of accreditation of registrars and the list of accredited registrars shall be made publicly available by the Registry in readily accessible form.
Each registrar shall be bound by contract with the Registry to observe the terms of accreditation and in particular to comply with the public policy principles set out in this Regulation.
Article 5
Provisions for registrars
Without prejudice to any rule governing jurisdiction and applicable law, agreements between the Registrar and the registrant of a domain name cannot designate, as applicable law, a law other than the law of one of the Member States, nor can they designate a dispute-resolution body, unless selected by the Registry pursuant to Article 23, nor an arbitration court or a court located outside the Community.
A registrar who receives more than one registration request for the same name shall forward those requests to the Registry in the chronological order in which they were received.
Only applications received after the date of accreditation shall be forwarded to the Registry.
Registrars shall require all applicants to submit accurate and reliable contact details of at least one natural or legal person responsible for the technical operation of the domain name that is requested.
Registrars may develop label, authentication and trustmark schemes in order to promote consumer confidence in the reliability of information that is available under a domain name that is registered by them, in accordance with applicable national and Community law.
CHAPTER III LANGUAGES AND GEOGRAPHICAL CONCEPTS
Article 6
Languages
Registrations of .eu domain names shall start only after the Registry has informed the Commission that the filing of applications for the registration of .eu domain names and communications of decisions concerning registration is possible in all official languages of the Community, hereinafter referred to as ‘official languages’.
For any communication by the Registry that affects the rights of a party in conjunction with a registration, such as the grant, transfer, cancellation or revocation of a domain, the Registry shall ensure that these communications are possible in all official languages.
The Registry shall perform the registration of domain names in all the alphabetic characters of the official languages when adequate international standards become available.
The Registry shall not be required to perform functions using languages other than the official languages.
Article 7
Procedure for reserved geographical and geopolitical names
For the procedure of raising objections to the lists of broadly recognised names in accordance with the third subparagraph of Article 5(2) of Regulation (EC) No 733/2002, objections shall be notified to the members of the Communications Committee established by Article 22(1) of Directive 2002/21/EC and to the Director-General of the Commission's Directorate-General Information Society. The members of the Communications Committee and the Director-General may designate other contact points for these notifications.
Objections and designations of contact points shall be notified in the form of electronic mail, delivery by courier or in person, or by postal delivery effected by way of registered letter and acknowledgement of receipt.
Upon the resolution of any objections, the Registry shall publish on its web site two lists of names. The one list shall contain the list of names that the Commission shall have notified as ‘not registrable’. The other list shall contain the list of names that the Commission shall have notified to the Registry as ‘registrable only under a second level domain’.
Article 8
Country names and alpha-2 codes representing countries
Member States (and acceding countries) may request that their official name and the name under which they are commonly known in one or more of the official languages (of the Community as extended in May 2004) shall not be registered directly under the .eu TLD by any person other than their national government. To that end, each Member State (or acceding country) shall send the Commission, within two months following the entry into force of this Regulation, a list of those names requiring to be reserved, as well as a designation of the body that will represent the national government in registering the names.
The Commission shall notify the Registry of the names that shall be reserved and the bodies that represent the national governments in registering the names.
Candidate countries that are not due to join the European Union in May 2004 and member countries of the European Economic Area that are not Member States may request that their official name and the name under which they are commonly known in their own language and in any of the official languages as from May 2004 shall not be registered directly under the .eu TLD. To that end, those countries may send the Commission, within two months following entry into force of this Regulation, a list of those names which are not to be registered.
The Commission shall notify the Registry of the names that shall not be registered.
Alpha-2 codes representing countries shall not be used to register domain names directly under the .eu TLD.
Article 9
Second level domain name for geographical and geopolitical names
Registration of geographical and geopolitical concepts as domain names in accordance with Article 5(2)(b) of Regulation (EC) No 733/2002 may be provided for by a Member State that has notified the names. This may be done under any domain name that has been registered by that Member State.
The Commission may ask the Registry to introduce domain names directly under the .eu TLD for use by the Community institutions and bodies. After the entry into force of this Regulation and not later than a week before the beginning of the phased registration period provided for in Chapter IV, the Commission shall notify the Registry of the names that are to be reserved and the bodies that represent the Community institutions and bodies in registering the names.
CHAPTER IV PHASED REGISTRATION
Article 10
Eligible parties and the names they can register
1. Holders of prior rights recognised or established by national and/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of. eu domain starts.
‘Prior rights’ shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works.
‘Public bodies’ shall include: institutions and bodies of the Community, national and local governments, governmental bodies, authorities, organisations and bodies governed by public law, and international and intergovernmental organisations.
2. The registration on the basis of a prior right shall consist of the registration of the complete name for which the prior right exists, as written in the documentation which proves that such a right exists.
3. The registration by a public body may consist of the complete name of the public body or the acronym that is generally used. Public bodies that are responsible for governing a particular geographic territory may also register the complete name of the territory for which they are responsible, and the name under which the territory is commonly known.
Article 11
Special characters
As far as the registration of complete names is concerned, where such names comprise a space between the textual or word elements, identicality shall be deemed to exist between such complete names and the same names written with a hyphen between the word elements or combined in one word in the domain name applied for.
Where the name for which prior rights are claimed contains special characters, spaces, or punctuations, these shall be eliminated entirely from the corresponding domain name, replaced with hyphens, or, if possible, rewritten.
Special character and punctuations as referred to in the second paragraph shall include the following:
~ @ # $ % ^ & * ( ) + = { } [ ] | \ /: ; ' , . ?
Without prejudice to the third paragraph of Article 6, if the prior right name contains letters which have additional elements that cannot be reproduced in ASCII code, such as ä, é or ñ, the letters concerned shall be reproduced without these elements (such as a, e, n), or shall be replaced by conventionally accepted spellings (such as ae). In all other respects, the domain name shall be identical to the textual or word elements of the prior right name.
Article 12
Principles for phased registration
1. Phased registration shall not start before 1 May 2004 and only when the requirement of the first paragraph of Article 6 is fulfilled and the period provided for in Article 8 has expired.
The Registry shall publish the date on which phased registration shall start at least two months in advance and shall inform all accredited Registrars accordingly.
The Registry shall publish on its website two months before the beginning of the phased registration a detailed description of all the technical and administrative measures that it shall use to ensure a proper, fair and technically sound administration of the phased registration period.
2. The duration of the phased registration period shall be four months. General registration of domain names shall not start prior to the completion of the phased registration period.
Phased registration shall be comprised of two parts of two months each.
During the first part of phased registration, only registered national and Community trademarks, geographical indications, and the names and acronyms referred to in Article 10(3), may be applied for as domain names by holders or licensees of prior rights and by the public bodies mentioned in Article 10(1).
During the second part of phased registration, the names that can be registered in the first part as well as names based on all other prior rights can be applied for as domain names by holders of prior rights on those names.
3. The request to register a domain name based on a prior right under Article 10(1) and (2) shall include a reference to the legal basis in national or Community law for the right to the name, as well as other relevant information, such as trademark registration number, information concerning publication in an official journal or government gazette, registration information at professional or business associations and chambers of commerce.
4. The Registry may make the requests for domain name registration subject to payment of additional fees, provided that these serve merely to cover the costs generated by the application of this Chapter. The Registry may charge differential fees depending upon the complexity of the process required to validate prior rights.
5. At the end of the phased registration an independent audit shall be performed at the expense of the Registry and shall report its findings to the Commission. The auditor shall be appointed by the Registry after consulting the Commission. The purpose of the audit shall be to confirm the fair, appropriate and sound operational and technical administration of the phased registration period by the Registry.
6. To resolve a dispute over a domain name the rules provided in Chapter VI shall apply.
Article 13
Selection of validation agents
Validation agents shall be legal persons established within the territory of the Community. Validation agents shall be reputable bodies with appropriate expertise. The Registry shall select the validation agents in an objective, transparent and non-discriminatory manner, ensuring the widest possible geographical diversity. The Registry shall require the validation agent to execute the validation in an objective, transparent and non-discriminatory manner.
Member States shall provide for validation concerning the names mentioned in Article 10(3). To that end, the Member States shall send to the Commission within two months following entry into force of this Regulation, a clear indication of the addresses to which documentary evidence is to be sent for verification. The Commission shall notify the Registry of these addresses.
The Registry shall publish information about the validation agents at its website.
Article 14
Validation and registration of applications received during phased registration
All claims for prior rights under Article 10(1) and (2) must be verifiable by documentary evidence which demonstrates the right under the law by virtue of which it exists.
The Registry, upon receipt of the application, shall block the domain name in question until validation has taken place or until the deadline passes for receipt of documentation. If the Registry receives more than one claim for the same domain during the phased registration period, applications shall be dealt with in strict chronological order.
The Registry shall make available a database containing information about the domain names applied for under the procedure for phased registration, the applicants, the Registrar that submitted the application, the deadline for submission of validation documents, and subsequent claims on the names.
Every applicant shall submit documentary evidence that shows that he or she is the holder of the prior right claimed on the name in question. The documentary evidence shall be submitted to a validation agent indicated by the Registry. The applicant shall submit the evidence in such a way that it shall be received by the validation agent within forty days from the submission of the application for the domain name. If the documentary evidence has not been received by this deadline, the application for the domain name shall be rejected.
Validation agents shall time-stamp documentary evidence upon receipt.
Validation agents shall examine applications for any particular domain name in the order in which the application was received at the Registry.
The relevant validation agent shall examine whether the applicant that is first in line to be assessed for a domain name and that has submitted the documentary evidence before the deadline has prior rights on the name. If the documentary evidence has not been received in time or if the validation agent finds that the documentary evidence does not substantiate a prior right, he shall notify the Registry of this.
If the validation agent finds that prior rights exist regarding the application for a particular domain name that is first in line, he shall notify the Registry accordingly.
This examination of each claim in chronological order of receipt shall be followed until a claim is found for which prior rights on the name in question are confirmed by a validation agent.
The Registry shall register the domain name, on the first come first served basis, if it finds that the applicant has demonstrated a prior right in accordance with the procedure set out in the second, third and fourth paragraphs.
CHAPTER V RESERVATIONS, WHOIS DATA AND IMPROPER REGISTRATIONS
Article 15
Escrow agreement
1. The Registry shall, at its own expense, enter into an agreement with a reputable trustee or other escrow agent established within the territory of the Community designating the Commission as the beneficiary of the escrow agreement. The Commission shall give its consent to that agreement before it is concluded. The Registry shall submit to the escrow agent on a daily basis an electronic copy of the current content of the .eu database.
2. The agreement shall provide that the data shall be held by the escrow agent on the following terms and conditions:
(a)
the data shall be received and held in escrow, undergoing no procedure other than verification that it is complete, consistent, and in proper format, until it is released to the Commission;
(b)
the data shall be released from escrow upon expiration without renewal or upon termination of the contract between the Registry and the Commission for any of the reasons described therein and irrespectively of any disputes or litigation between the Commission and the Registry;
(c)
in the event that the escrow is released, the Commission shall have the exclusive, irrevocable, royalty-free right to exercise or to have exercised all rights necessary to re-designate the Registry;
(d)
if the contract with the Registry is terminated the Commission, with the cooperation of the Registry, shall take all necessary steps to transfer the administrative and operational responsibility for the .eu TLD and any reserve funds to such party as the Commission may designate: in that event, the Registry shall make all efforts to avoid disruption of the service and shall in particular continue to update the information that is subject to the escrow until the time of completion of the transfer.
Article 16
WHOIS database
The purpose of the WHOIS database shall be to provide reasonably accurate and up to date information about the technical and administrative points of contact administering the domain names under the .eu TLD.
The WHOIS database shall contain information about the holder of a domain name that is relevant and not excessive in relation to the purpose of the database. In as far as the information is not strictly necessary in relation to the purpose of the database, and if the domain name holder is a natural person, the information that is to be made publicly available shall be subject to the unambiguous consent of the domain name holder. The deliberate submission of inaccurate information, shall constitute grounds for considering the domain name registration to have been in breach of the terms of registration.
Article 17
Names reserved by the Registry
The following names shall be reserved for the operational functions of the Registry:
eurid.eu, registry.eu, nic.eu, dns.eu, internic.eu, whois.eu, das.eu, coc.eu, eurethix.eu, eurethics.eu, euthics.eu
Article 18
Improper registrations
Where a domain name is considered by a Court of a Member State to be defamatory, racist or contrary to public policy, it shall be blocked by the Registry upon notification of a Court decision and shall be revoked upon notification of a final court decision. The Registry shall block from future registration those names which have been subject to such a court order for as long as such order remains valid.
Article 19
Death and winding up
1. If the domain name holder dies during the registration period of the domain name, the executors of his or her estate, or his or her legal heirs, may request transfer of the name to the heirs along with submission of the appropriate documentation. If, on expiry of the registration period, no transfer has been initiated, the domain name shall be suspended for a period of 40 calendar days and shall be published on the Registry's website. During this period the executors or the legal heirs may apply to register the name along with submission of the appropriate documentation. If the heirs have not registered the name during that 40-day period, the domain name shall thereafter become available for general registration.
2. If the domain name holder is an undertaking, a legal or natural person, or an organisation that becomes subject to insolvency proceedings, winding up, cessation of trading, winding up by court order or any similar proceeding provided for by national law, during the registration period of the domain name, then the legally appointed administrator of the domain name holder may request transfer to the purchaser of the domain name holders assets along with submission of the appropriate documentation. If, on expiry of the registration period, no transfer has been initiated, the domain name shall be suspended for a period of forty calendar days and shall be published on the registry's website. During this period the administrator may apply to register the name along with submission of appropriate documentation. If the administrator has not registered the name during that 40-day period, the domain name shall thereafter become available for general registration.
CHAPTER VI REVOCATION AND SETTLEMENT OF CONFLICTS
Article 20
Revocation of domain names
The Registry may revoke a domain name at its own initiative and without submitting the dispute to any extrajudicial settlement of conflicts, exclusively on the following grounds:
(a)
outstanding unpaid debts owed to the Registry;
(b)
holder's non-fulfilment of the general eligibility criteria pursuant to Article 4(2)(b) of Regulation (EC) 733/2002;
(c)
holder's breach of the terms of registration under Article 3.
The Registry shall lay down a procedure in accordance with which it may revoke domain names on these grounds. This procedure shall include a notice to the domain name holder and shall afford him an opportunity to take appropriate measures.
Revocation of a domain name, and where necessary its subsequent transfer, may also be effected in accordance with a decision issued by an extrajudicial settlement body.
Article 21
Speculative and abusive registrations
1. A registered domain name shall be subject to revocation, using an appropriate extra-judicial or judicial procedure, where that name is identical or confusingly similar to a name in respect of which a right is recognised or established by national and/or Community law, such as the rights mentioned in Article 10(1), and where it:
(a)
has been registered by its holder without rights or legitimate interest in the name; or
(b)
has been registered or is being used in bad faith.
2. A legitimate interest within the meaning of point (a) of paragraph 1 may be demonstrated where:
(a)
prior to any notice of an alternative dispute resolution (ADR) procedure, the holder of a domain name has used the domain name or a name corresponding to the domain name in connection with the offering of goods or services or has made demonstrable preparation to do so;
(b)
the holder of a domain name, being an undertaking, organisation or natural person, has been commonly known by the domain name, even in the absence of a right recognised or established by national and/or Community law;
(c)
the holder of a domain name is making a legitimate and non-commercial or fair use of the domain name, without intent to mislead consumers or harm the reputation of a name on which a right is recognised or established by national and/or Community law.
3. Bad faith, within the meaning of point (b) of paragraph 1 may be demonstrated, where:
(a)
circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name to the holder of a name in respect of which a right is recognised or established by national and/or Community law or to a public body; or
(b)
the domain name has been registered in order to prevent the holder of such a name in respect of which a right is recognised or established by national and/or Community law, or a public body, from reflecting this name in a corresponding domain name, provided that:
(i)
a pattern of such conduct by the registrant can be demonstrated; or
(ii)
the domain name has not been used in a relevant way for at least two years from the date of registration; or
(iii)
in circumstances where, at the time the ADR procedure was initiated, the holder of a domain name in respect of which a right is recognised or established by national and/or Community law or the holder of a domain name of a public body has declared his/its intention to use the domain name in a relevant way but fails to do so within six months of the day on which the ADR procedure was initiated;
(c)
the domain name was registered primarily for the purpose of disrupting the professional activities of a competitor; or
(d)
the domain name was intentionally used to attract Internet users, for commercial gain, to the holder of a domain name website or other on-line location, by creating a likelihood of confusion with a name on which a right is recognised or established by national and/or Community law or a name of a public body, such likelihood arising as to the source, sponsorship, affiliation or endorsement of the website or location or of a product or service on the website or location of the holder of a domain name; or
(e)
the domain name registered is a personal name for which no demonstrable link exists between the domain name holder and the domain name registered.
4. The provisions in paragraphs 1, 2 and 3 may not be invoked so as to obstruct claims under national law.
Article 22
Alternative dispute resolution (ADR) procedure
1. An ADR procedure may be initiated by any party where:
(a)
the registration is speculative or abusive within the meaning of Article 21; or
(b)
a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733/2002.
2. Participation in the ADR procedure shall be compulsory for the holder of a domain name and the Registry.
3. A fee for the ADR shall be paid by the complainant.
4. Unless otherwise agreed by the parties, or specified otherwise in the registration agreement between registrar and domain name holder, the language of the administrative proceeding shall be the language of that agreement. This rule shall be subject to the authority of the panel to determine otherwise, having regard to the circumstances of the case.
5. The complaints and the responses to those complaints must be submitted to an ADR provider chosen by the complainant from the list referred to in the first paragraph of Article 23. That submission shall be made in accordance with this Regulation and the published supplementary procedures of the ADR provider.
6. As soon as a request for ADR is properly filed with the ADR provider and the appropriate fee is paid, the ADR provider shall inform the Registry of the identity of the complainant and the domain name involved. The Registry shall suspend the domain name involved from cancellation or transfer until the dispute resolution proceedings or subsequent legal proceedings are complete and the decision has been notified to the Registry.
7. The ADR provider shall examine the complaint for compliance with its rules of procedure, with the provisions of this Regulation and with Regulation (EC) No 733/2002, and, unless non-compliance is established, shall forward the complaint to the respondent within five working days following receipt of the fees to be paid by the complainant.
8. Within 30 working days of the date of receipt of the complaint the respondent shall submit a response to the provider.
9. Any written communication to a complainant or respondent shall be made by the preferred means stated by the complainant or respondent, respectively, or in the absence of such specification electronically via the Internet, provided that a record of transmission is available.
All communications concerning the ADR procedure to the holder of a domain name that is subject to an ADR procedure shall be sent to the address information that is available to the Registrar that maintains the registration of the domain name in accordance with the terms and conditions of registration.
10. Failure of any of the parties involved in an ADR procedure to respond within the given deadlines or appear to a panel hearing may be considered as grounds to accept the claims of the counterparty.
11. In the case of a procedure against a domain name holder, the ADR panel shall decide that the domain name shall be revoked, if it finds that the registration is speculative or abusive as defined in Article 21. The domain name shall be transferred to the complainant if the complainant applies for this domain name and satisfies the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733/2002.
In the case of a procedure against the Registry, the ADR panel shall decide whether a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733/2002. The ADR panel shall decide that the decision shall be annulled and may decide in appropriate cases that the domain name in question shall be transferred, revoked or attributed, provided that, where necessary, the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733/2002 are fulfilled.
The decision of the ADR panel shall state the date for implementation of the decision.
Decisions of the panel are taken by simple majority. The alternative dispute panel shall issue its decision within one month from the date of receipt of the response by the ADR provider. The decision shall be duly motivated. The decisions of the panel shall be published.
12. Within three working days after receiving the decision from the panel, the provider shall notify the full text of the decision to each party, the concerned registrar(s) and the Registry. The decision shall be notified to the Registry and the complainant by registered post or other equivalent electronic means.
13. The results of ADR shall be binding on the parties and the Registry unless court proceedings are initiated within 30 calendar days of the notification of the result of the ADR procedure to the parties.
Article 23
Selection of providers and panellists for alternative dispute resolution
1. The Registry may select ADR providers, who shall be reputable bodies with appropriate expertise in an objective, transparent and non-discriminatory manner. A list of the ADR providers shall be published on the Registry's website.
2. A dispute which is submitted to the ADR procedure shall be examined by arbitrators appointed to a panel of one or three members.
The panellists shall be selected in accordance to the internal procedures of the selected ADR providers. They shall have appropriate expertise and shall be selected in an objective, transparent and non-discriminatory manner. Each provider shall maintain a publicly available list of panellists and their qualifications.
A panellist shall be impartial and independent and shall have, before accepting appointment, disclosed to the provider any circumstances giving rise to justifiable doubt as to their impartiality or independence. If, at any stage during the administrative proceedings, new circumstances arise that could give rise to justifiable doubt as to the impartiality or independence of the panellist, that panellist shall promptly disclose such circumstances to the provider.
In such event, the provider shall appoint a substitute panellist.
CHAPTER VII FINAL PROVISIONS
Article 24
Entry into force
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 April 2004.