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Suggest You - Introduction to .eu Domain Disputes
In my years of speaking, I have dealt with many unique and challenging situations. I have listed tactics to work with each audience and how to turn your challenge into a success. The Hostile Audience This audience group openly disagrees with you and may even actively work against you. For a hostile audience, use these techniques: Find common beliefs and values. Find something to agree on.Use appropriate humor to break the ice.Don't start the presentation with an attack on their position.Keep in mind that you are only trying to persuade on one point; don't talk about anything else that could be considered hostile, offensive or condescending.Because of your differences, a hostile audience will question your credibility. Increase your credibility with expert studies or any source that will support your claim.A hostile audience will try to find reasons to not like you; don't give them any.
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transfe
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Institutions
In May 2003 the European Registry for Internet Domains (EURid) was selected as the .eu registry, and was entrusted with the organisation, administration and management of the new .eu domain. EURid is a not-for-profit organisation whose fees are intended only to cover its costs.
EURid has appointed the Arbitration Court attached to the Czech Chamber of Commerce as its provider of .eu ADR services. In principle it could appoint more providers in future.
Procedures
Under the .eu Regulation, ADR proceedings may be initiated by any person: you do not need to be the owner of the trade mark or name upon which a complaint is based.
The ADR proceedings will usually be conducted in the language specified in the registration agreement, and in practice that usually means English.
The complainant files a complaint in the requisite form and pays the up-front fees. The fees vary with the number of domain names at issue and the number of panellists chosen, and range between Euros 1990 and 5400+. After the complaint is filed and the fee paid, a block is put on the domain name preventing transfer for the duration of the proceedings. The respondent's case is set out in its response, which must be filed within 30 working days of the date of receipt of the complaint. If no response is received, the expert is empowered to consider this as a ground to accept the complainant's arguments. In most cases there will be no opportunity for the complainant to reply to the respondent's response.
However, the ADR panel does have the power to request further information and/or documents from the parties. Oral hearings may be ordered in "exceptional circumstances", but in practice that is likely to mean almost never.
The remedies available are revocation and transfer or the domain name(s) at issue; the remedy will be implemented by the domain registrar. There is no appeal from a panel decision (unlike, for instance, at Nominet). However, an aggrieved party is free to initiate court proceedings
Substantive rules
The substantive rules governing .eu domain name arbitrations are set out in Article 21 of the .eu Regulation:
"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 ... 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."
Providing there is identity or confusing similarity between the domain name and someone else's name or mark, you only need to establish one of the other criterion - a lack of rights/legitimate interest upon registration or bad faith – to succeed in the ADR proceedings.
The UDRP contains much the same criteria, but under the UDRP both need to be established to ground an action. It is unclear why the Commission decided to treat these criteria as disjunctive, given that the Recitals to the Regulation highlight the UDRP (as administered by WIPO) as an example of best practice - and given the trenchant criticism from many quarters that the UDRP is (or has been applied in a way that is) excessively pro-complainant.
Respondent's rights and legitimate interests
How can a respondent demonstrate rights or legitimate interests in a domain?
"Rights" usually means trade mark rights, registered or unregistered. An issue here will be whether names used in a non-commercial context can give rise to relevant rights.
"Legitimate interests" is a more nebulous concept. In order to demonstrate a legitimate interest, a domain name registrant will need to show: (i) commercial use of the domain name (or demonstrable preparation for such use), (ii) "legitimate and non-commercial or fair use of the domain name, without intent to mislead customers or harm the reputation of a name on which a right is recognised or established by national and/or community law", or (iii) that the domain name designates the registrant. So, the "legitimate interest" criterion is a low hurdle, but it is a hurdle nonetheless, and can be expected to trip up some registrants.
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transfer
What if consumer debt in our nation was not a big issue? What if all Americans lived within their means? What if no one was paying higher interest rates to their plastic companions than on the Streets of New York?What if everyone paid off their entire balance each month? What if the money, which is being paid in interest was instead saved in 401Ks, investments and stocks? What if that money went into real estate or even the bank?What if no one was living so high on the hog that they were paying interest the wrong way, but rather collecting interest for their investments? What if the cost of living for the average American were down to a level that it was not such a tough grind for them? What if fuel prices were less?What if those who really could not afford to buy elaborate Christmas Gifts went on the light side of things? What if American families lived within their means and taught their kids to do the same? What if no one really needed debt relief because they never got into the problem in the first place?What if
The ADR proceedings will usually be conducted in the language specified in the registration agreement, and in practice that usually means English.
The complainant files a complaint in the requisite form and pays the up-front fees. The fees vary with the number of domain names at issue and the number of panellists chosen, and range between Euros 1990 and 5400+. After the complaint is filed and the fee paid, a block is put on the domain name preventing transfer for the duration of the proceedings. The respondent's case is set out in its response, which must be filed within 30 working days of the date of receipt of the complaint. If no response is received, the expert is empowered to consider this as a ground to accept the complainant's arguments. In most cases there will be no opportunity for the complainant to reply to the respondent's response.
However, the ADR panel does have the power to request further information and/or documents from the parties. Oral hearings may be ordered in "exceptional circumstances", but in practice that is likely to mean almost never.
The remedies available are revocation and transfer or the domain name(s) at issue; the remedy will be implemented by the domain registrar. There is no appeal from a panel decision (unlike, for instance, at Nominet). However, an aggrieved party is free to initiate court proceedings
Substantive rules
The substantive rules governing .eu domain name arbitrations are set out in Article 21 of the .eu Regulation:
"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 ... 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."
Providing there is identity or confusing similarity between the domain name and someone else's name or mark, you only need to establish one of the other criterion - a lack of rights/legitimate interest upon registration or bad faith – to succeed in the ADR proceedings.
The UDRP contains much the same criteria, but under the UDRP both need to be established to ground an action. It is unclear why the Commission decided to treat these criteria as disjunctive, given that the Recitals to the Regulation highlight the UDRP (as administered by WIPO) as an example of best practice - and given the trenchant criticism from many quarters that the UDRP is (or has been applied in a way that is) excessively pro-complainant.
Respondent's rights and legitimate interests
How can a respondent demonstrate rights or legitimate interests in a domain?
"Rights" usually means trade mark rights, registered or unregistered. An issue here will be whether names used in a non-commercial context can give rise to relevant rights.
"Legitimate interests" is a more nebulous concept. In order to demonstrate a legitimate interest, a domain name registrant will need to show: (i) commercial use of the domain name (or demonstrable preparation for such use), (ii) "legitimate and non-commercial or fair use of the domain name, without intent to mislead customers or harm the reputation of a name on which a right is recognised or established by national and/or community law", or (iii) that the domain name designates the registrant. So, the "legitimate interest" criterion is a low hurdle, but it is a hurdle nonetheless, and can be expected to trip up some registrants.
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transfe
Procurement is the acquisition of goods or commodities by a company, organization, institution, or a person. This simply means the purchase of goods from suppliers at the lowest possible cost. The best way to do this is to let the suppliers compete with each other so that the expenses of the buyer are kept at a minimum.Procurement usually involves a bidding process in which the bidders or sellers quote their prices and the buyer accepts the lowest possible bid. This is the most efficient and cost effective method of procuring goods or services if the quality of the goods meets the buyers' requirement.The process of procurement usually begins when the procurer starts to search the market for bidders. After identifying the suppliers, a request for bids, proposals, quotes, and information can be made. However, direct contact with bidders can also be made instead of advertising the above requests.After selecting the suitable bidders, a quality check is essential in order to confirm the suitability of the goods in question. The
The remedies available are revocation and transfer or the domain name(s) at issue; the remedy will be implemented by the domain registrar. There is no appeal from a panel decision (unlike, for instance, at Nominet). However, an aggrieved party is free to initiate court proceedings
Substantive rules
The substantive rules governing .eu domain name arbitrations are set out in Article 21 of the .eu Regulation:
"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 ... 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."
Providing there is identity or confusing similarity between the domain name and someone else's name or mark, you only need to establish one of the other criterion - a lack of rights/legitimate interest upon registration or bad faith – to succeed in the ADR proceedings.
The UDRP contains much the same criteria, but under the UDRP both need to be established to ground an action. It is unclear why the Commission decided to treat these criteria as disjunctive, given that the Recitals to the Regulation highlight the UDRP (as administered by WIPO) as an example of best practice - and given the trenchant criticism from many quarters that the UDRP is (or has been applied in a way that is) excessively pro-complainant.
Respondent's rights and legitimate interests
How can a respondent demonstrate rights or legitimate interests in a domain?
"Rights" usually means trade mark rights, registered or unregistered. An issue here will be whether names used in a non-commercial context can give rise to relevant rights.
"Legitimate interests" is a more nebulous concept. In order to demonstrate a legitimate interest, a domain name registrant will need to show: (i) commercial use of the domain name (or demonstrable preparation for such use), (ii) "legitimate and non-commercial or fair use of the domain name, without intent to mislead customers or harm the reputation of a name on which a right is recognised or established by national and/or community law", or (iii) that the domain name designates the registrant. So, the "legitimate interest" criterion is a low hurdle, but it is a hurdle nonetheless, and can be expected to trip up some registrants.
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transfe
Nobody wants to spend more than they can afford in printing. At the same time, nobody wants to get less than their money’s worth. Printers, as with any other service and product providing establishments, sees to it that clients get the real deal for their money.Printing actually has a lot of overhead to keep in consideration. The printing machines and other pre-press equipment alone are a big investment. Added to these are the price of inks and high grade paper. Utilities such as water and electricity are also vital in the production.A lot goes into printing, and by saying a lot, it does not include just the materials but the step by step procedures your prints undergo. With the convenience of online printing, the clients can only be occupied with the design and then the prints arriving at their doorstep.Nevertheless, printing companies provide you with unquestionable service to bring you your desired prints. It is also remarkable to note that with every order, your prints can be considered as customized orders for printers
The UDRP contains much the same criteria, but under the UDRP both need to be established to ground an action. It is unclear why the Commission decided to treat these criteria as disjunctive, given that the Recitals to the Regulation highlight the UDRP (as administered by WIPO) as an example of best practice - and given the trenchant criticism from many quarters that the UDRP is (or has been applied in a way that is) excessively pro-complainant.
Respondent's rights and legitimate interests
How can a respondent demonstrate rights or legitimate interests in a domain?
"Rights" usually means trade mark rights, registered or unregistered. An issue here will be whether names used in a non-commercial context can give rise to relevant rights.
"Legitimate interests" is a more nebulous concept. In order to demonstrate a legitimate interest, a domain name registrant will need to show: (i) commercial use of the domain name (or demonstrable preparation for such use), (ii) "legitimate and non-commercial or fair use of the domain name, without intent to mislead customers or harm the reputation of a name on which a right is recognised or established by national and/or community law", or (iii) that the domain name designates the registrant. So, the "legitimate interest" criterion is a low hurdle, but it is a hurdle nonetheless, and can be expected to trip up some registrants.
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transfe
Cheap insurance? Auto insurance, life insurance, health insurance, liability insurance - whatever type of insurance you need, you can buy it for less. Try the following:1. Raise you deductible. Why have a $100 deductible if a $1000 deductible won't break you? It may hurt to pay the first thousand someday, but what if meanwhile you saved several thousand? High deductibles mean lower rates. Of course, get quotes with various deductibles, to be sure you're saving enough for the higher risk.2. Lower your coverage. Insurance agents secretly admit that people usually get sued according to policy limits. You'll be sued for more if your limit is a million than if it's a hundred thousand. A judgement beyond the policy limits is a scary thought, but this can happen no matter what your limits are. If you don't have many assets or much money in the bank, consider lowering your coverage to save money. Get quotes first, of course, to see how much you'll save.3. Lower the insurance company's risk. Using seatbelts, not smoking, and having
The two main problems with this definition, in our view, are that demonstrable preparations to make "legitimate and non-commercial or fair" use of a domain do not constitute a legitimate interest; and that any "harm" to a trade mark undermines a claim to legitimate interests notwithstanding a fair use. Don't hold your breath for www.euridsrulessuck.eu.
Bad faith
The Regulation says that bad faith "may be demonstrated" in the following circumstances:
(1) “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
(2) “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: a pattern of such conduct by the registrant can be demonstrated; or the domain name has not been used in a relevant way for at least two years from the date of registration; or 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”;
(3) “the domain name was registered primarily for the purpose of disrupting the professional activities of a competitor”; or
(4) “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 of a product or service on the website or location of the holder of a domain name”; or
(5) “the domain name registered is a personal name for which no demonstrable link exists between the domain name holder and the domain name registered”.
The circumstances are presented as little more than guidance, but there is a tendency for panellists to interpret these in the same way at they would an ordinary legislative provision. In particular, it is a rare panellist who will find that a case falling squarely within one of the examples of potential bad faith does not involve bad faith.
Some of the circumstances which are indicative of bad faith have been carried over from the UDRP; however, several are new. Most interesting is the suggestion that a declaration of an intention to use a domain name "in a relevant way" might protect that domain name from an allegation of bad faith (at least one based on there having been no relevant use) for a six month period from the date of initiation of the ADR procedure.
Conclusions
The .eu domain name dispute procedure is in its infancy. At the time of writing there is a steady stream of decisions coming out of the Czech Arbitration Court. The majority of those are complaints about EURid's failure to properly apply the Regulation during the sunrise period. Our reading of the EURid rules is that they are more pro-complainant than the UDRP. If that is right, a higher level of complaints can be expected than under the UDRP.
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