Since 29 January 2003 the Foundation for Internet Domain Registration in the Netherlands (Stichting Internet Domeinregistratie Nederland, “SIDN”) offered the option of suing a holder of a .nl domain name through arbitration. As of 28 February 2008, SIDN has replaced this arbitration process by Dispute Resolution Rules representing a speedy, straightforward and inexpensive alternative to the courts. As of the same date it became possible to register purely numerical domain names.
New Dispute Resolution Rules
The Dispute Resolution Rules apply to all .nl domain names, including those that were registered before 29 January 2003. SIDN has expressly done this in order to offer parties the option of still going to the ordinary court at any stage of the dispute. This option did not exist under the arbitration rules. The Dispute Resolution Rules, on the other hand, provide no order to pay the costs of proceedings and no possibility of appeal. The latter does not necessarily have to cause problems, because no appeal was ever lodged under the arbitration rules, and it is now possible to apply also to the civil courts. Finally, the Dispute Resolution Rules provide a broader base for the submission of complaints. This will be further discussed below.
In Line With UDRP?
SIDN states to have created rules that are in line with the Uniform Dispute Resolution Policy (“UDRP”). UDRP is an internationally much used policy, mostly applied to generic Top Level Domains (“gTLD”), such as .com, .net and .org. Just as in the UDRP, the decision of the authority resolving the dispute must be executed by SIDN at once, without first having to be served. This is mostly favorable in the case of, for example, a foreign domain name holder who is difficult to trace. Another resemblance with the UDRP is that no damages or order to pay the costs of proceedings are awarded, and that in principle no oral proceedings are held.
However, there are a number of respects in which the Dispute Resolution Rules differ from the UDRP. For example, it is only possible to claim the assignment of the domain name, but not its cancellation too, which the UDRP does allow.
Furthermore, the grounds on which complainants can bring their complaints differ. Under the Dispute Resolution Rules a complaint can be submitted if a domain name was registered that is contrary to a third party’s trademark or trade name right, or contrary to a personal name, a name of a Dutch Public Legal Entity, or a name of a foundation or association “provided that such name is commonly and publicly used”. Under the UDRP, disputes can only be resolved if a domain name was registered contrary to a third party’s trademark right. However, it is necessary to assess and prove – just as under the UDRP – that the domain name holder has no right to or legitimate interest in the domain name. Another striking difference is that under the Dispute Resolution Rules the complainant has to prove that the domain name has been registered or used in bad faith, whereas under the UDRP one must be able to prove that both the registration and the use of the domain name are in bad faith. In comparison with the UDRP rules, the Dispute Resolution Rules thus provide a broader basis for the submission of complaints and are more limited as to what needs to be assessed and proven. Moreover, the Dispute Resolution Rules lend parties a hand by offering them examples of evidence.
Introduction of Purely Numerical Domain Name
SIDN has also implemented quite a different change, for which everyone is eligible as of 28 February 2008: the possibility to register purely numerical domain names. Numerical domain names are names made up entirely of numbers (e.g. 1234.nl), or of numbers separated by hyphens (e.g. 12-34.nl). In December 2007, during the so-called two week Sunrise period, SIDN offered holders of Benelux and Community trademarks and holders of trade names protected in the Netherlands the exclusive possibility to register for numerical .nl domain names connected with their trademark or trade name. During this period 125 applications were made for 114 numerical .nl domain names. This number included different applications for the same numerical domain name. In such cases the order of precedence is determined in a lottery made by a notary public. The domain name 9292.nl was the first purely numerical domain name that was registered.
The Dispute Resolution Rules resemble the UDRP rules in broad outline, but are more accessible. The grounds on which a complainant may submit his complaint are broader and the burden of proof seems to be more limited. Now that numerical domain names can also be registered, and digits and combinations of digits can be registered as trademarks, holders of numerical domain names can also be sued. For example, whoever registers domain name 123.nl should be prepared for the worst: in the Benelux trademarks register alone there are fourteen identical 123 trademarks, and even more resembling trademarks.