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What are the changes in internet domain names dispute resolution practice?

Legal Alerts
Intellectual Property
General

The Internet Domain Names Dispute Resolution Mechanism Communiqué (“Communiqué“), which regulates the procedures and principles regarding the operation of the dispute resolution mechanism with respect to internet domain names, and the determination of Dispute Resolution Service Providers (“DRSPs“) and their obligations, was published in the Official Gazette dated 21 August 2013 and numbered 28742. The Communiqué Amending the Internet Domain Names Dispute Resolution Mechanism Communiqué (“Communiqué Amending the Communiqué“), which envisages radical changes in the Communiqué, was published in the second repetitive Official Gazette dated 30 December 2021 and numbered 31705.

Recent development

Recently, Nic.tr announced that all transactions regarding the allocation and management of “.tr” domain names would be carried out over the “.tr Network Information System” (“TRABIS“). Upon the transition process from Nic.tr to TRABIS, many transactions and concepts related to “.tr” domain names were altered and some significant amendments to the Communiqué were required. Thus, the Communiqué Amending the Communiqué, which entered into force by being published in the second repetitive Official Gazette dated 30 December 2021 and numbered 31705, harmonized some of the provisions in the Communiqué with TRABIS by detailing their content and introduced some provisional articles with respect to the transition process. You can access the Communiqué Amending the Communiqué here.

What amendments are envisaged in the Communiqué?

  • The phrase“universities, public professional organizations or international organizations” in subparagraph (j) of the first paragraph of Article 4 of the Communiqué has been replaced with the term “parties.” In accordance with the relevant subparagraph, DRSPs are defined as parties that carry out the dispute resolution process regarding internet domain names through arbitrators or arbitration committees.
  • The phrase “applicant’s” in the first sentence of the second paragraph of Article 5 of the Communiqué has been replaced with the phrase “applicant.” Pursuant to the fourth paragraph of the same article, those who are determined to meet the necessary conditions of the Information Technologies and Communication Authority’s (“ITCA“) examination will become DRSPs and an activity certificate will be issued to the said parties to enable them to operate as DRSPs. The names and contact information of these DRSPs will be published on the ITCA’s official website.
  • Pursuant to the amendment envisaged in subparagraph (e) of the first paragraph of Article 10 of the Communiqué, which stipulates the qualifications of arbitrators, having graduated from higher education institutions in Turkey that offer at least four years of undergraduate education or from higher education institutions abroad whose equivalence has been accepted by the Council of Higher Education is regulated as one of the requirements sought for arbitrators.
  • Some significant changes are envisaged in the procedure for arbitrators’ decisions. Pursuant to the amendments made in the third and fourth paragraphs of Article 14 of the Communiqué, DRSPs will convey the decision that they are notified of and the reasoning for the decision to TRABIS, the relevant Domain Registrars (“DRs“) and the respective parties, and they will publish them on their website, taking the necessary measures for personal data protection. In case the complainant and the complainee request the termination of the dispute resolution process by mutual agreement before the decision is made, the arbitrator or the arbitral tribunal terminates their work. This situation is published on the DRSP’s website and is notified to TRABIS and the relevant DRs. In the event that the arbitrator or the arbitral tribunal terminates their work within the scope of paragraph 4 of Article 14 of the Communiqué, the fees paid to the DRSP and the arbitrators will not be refunded.
  • The third paragraph of the Communiqué, which states that refunding the DRSP fee at any stage of the dispute resolution process is subject to the discretion of the DSRP, and the sixth paragraph of the Communiqué, which states that the wrongful party will pay the costs related to the DSRP and arbitrator fees, if any, to the rightful party, with the decision of the arbitrator or arbitral tribunal, have been repealed.
  • There are some radical amendments to Article 21 of the Communiqué, which stipulates the supervision of DRSPs and the sanctions to be applied to them. In addition, all paragraphs of the relevant article except for the first paragraph, which states that the ITCA is authorized to inspect the DRSPs ex officio or upon complaint, have been revised. The following items are in accordance with the relevant amendments:
    • As a result of its inspections, the ITCA may take the necessary measures and impose the relevant administrative sanctions, including terminating their activities, for DRSPs that are found to be operating in violation of the Internet Domain Names Regulation (“Regulation“), the Communiqué or other relevant legislation.
    • Regarding the dispute resolution processes carried out by a DRSP whose activities were terminated by the ITCA, the ITCA may take one of the following measures:
  1. The DRSP in question may make a decision.
  2. Another DRSP approved by the ITCA may make a decision.
  3. DRSP and arbitrator fees, terminated and paid by the ITCA, are to be returned by the relevant DRSP.
    • DRSPs may terminate their activities provided that they notify the ITCA at least one month in advance and decide on the dispute resolution processes they carry out through their arbitrators. DRSPs cannot accept new applications for complaints after they have notified the ITCA.
    • DRSPs are responsible for the damages they cause if they terminate their activities or if they are terminated by the ITCA.
  • Provisional Article 2, which regulates the absence of a minimum operating DRSP, has been added to the Communiqué. According to the relevant article, in the absence of a minimum operating DRSP, a party determined by the ITCA will operate the alternative dispute resolution mechanism defined in the sixth section of the Regulation until a DRSP becomes operational. An activity certificate is issued to the said party to enable it to operate as the DRSP. The said party is subject to all obligations defined for the DRSP in the Regulation, the Communiqué and other relevant legislation.
  • Provisional Article 3, which regulates the application to the DRSP regarding renewal procedures, has been added to the Communiqué. According to the relevant article, no application can be made to the alternative dispute resolution mechanism defined in the sixth section of the Regulation for domain names that were allocated before TRABIS becomes operational. However, an application to the dispute resolution mechanism can be made for domain names renewed after TRABIS becomes operational.
  • The “DRSP Application Form” in the annex of the Communiqué has been modified. You can access the updated version of the form here.
  • The Communiqué Amending the Communiqué entered into force as of the date of its publication in the Official Gazette, and the duty and authority to execute the provisions of the Communiqué Amending the Communiqué belongs to the ITCA.

Conclusion

The Communiqué Amending the Communiqué envisages radical amendments to the Communiqué regulating the operation of the dispute resolution mechanism for “.tr” domain names, the determination of DRSPs and their obligations. Subsequent to the announcement that TRABIS will become operational very soon, provisional articles regarding the transition process have been added to the Communiqué and crucial amendments aiming to harmonize some articles of the Communiqué with TRABIS have been envisaged.