Changing the Name Game

The relevance of domain names cannot be underestimated. They have become important indicators of identity on the Internet for commercial, institutional and ideological entities. The development of the general system that governs the allocation of domain names has expanded dramatically. In the early days of the Internet, the first domain names were registered in a notebook by internet pioneer Jon Postel. Today, the registration of the millions of domain names are handled by numerous registrars. However, this system looks set to change.

New Generic Top Level Domains

On July 16 2000 the Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit organization that bears overall responsibility for the domain name system management, adopted a policy for the introduction of new generic top level domains. A top level domain is the highest level of a domain name and can be found behind the final dot in a domain name. For instance, in the domain name www.nautadutilh.com, the 'com' part is the top level domain. There are two types of top level domains: generic top level domains (gTLDs) and country code top level domains (ccTLDs).

Presently, there are seven gTLDs. The first three do not apply any restrictions on who may apply for a registration within the domain or on what use may be made of those registrations. These include:

• .com;
  
  
• .net; and
  
  
• .org

There are then four restricted gTLDs:

• .gov (US government);
  
  
• .mil (US military);
  
  
• .edu (certain four-year degree granting US colleges and universities); and
  
  
• .arpa (internet infrastructure applications).

Originally, the TLD '.com' was intended to provide domain names for the commercial community. The explosive growth of the Internet and the ever increasing need for commercial domain names soon made clear that one TLD could not cover all commercial purposes. For that reason ICANN decided to extend the number of gTLDs, introducing them in a measured manner. This policy aims to have the new names operated or sponsored by interested parties and organizations.

Entities interested in sponsoring or operating new TLDs were able to submit their applications to ICANN until October 2 2000. A total of 47 applications were received. Until October 15 the public could submit comments on these proposals. On November 16 2000, ICANN announced its selection of seven new TLDs:

• .aero;
  
  
• .biz;
  
  
• .coop;
  
  
• .info;
  
  
• .museum;
  
  
• .name; and
  
  
• .pro.

ICANN is negotiating the registry agreements with the selected applicants and aims to conclude these negotiations by December 31 2000. The approved new gTLDs should become operational soon after. Certain companies are already advertising that they can pre-register domain names under the new selected gTLDs. However, these have not yet been finalized. This pre-registration is nothing more than a registration in a company's own database. As soon as the new gTLDs become available they will then attempt to register their subscribers. It is no guarantee of the domain name.

Europe Gets a Country Code

In 1999 the European Commission announced its plans to introduce a new country code - '.eu'. This new ccTLD would serve as an indicator of European identity for commercial and institutional entities present on the Internet. The commission further noted that the US based gTLD '.com' was heavily congested and that the national ccTLDs, such as '.nl', '.be', '.uk', caused entities to file multiple national registrations. Considering the unification of the European market and the introduction of the euro, the commission feels that there is a need for a common European ccTLD. The '.eu' domain name forms part of the commission's e-Europe initiative.

In February 2000, the commission launched a public consultation on how the proposed ccTLD should be set up. The commission has also been in contact with the US government and ICANN regarding the introduction of the ccTLD '.eu' in the Domain Name System (DNS) and the delegation of the authority to manage the domain. On September 25 2000 ICANN decided to introduce the '.eu' domain to the DNS, but it has not yet taken a decision as to who will manage this domain. Recently, the European Community Panel of Participants advised that the ccTLD '.eu' should be managed by a specially created, non-profit organization. It is felt that the European Union cannot be seen to create a commercial monopoly.

The commission acknowledges that there is a risk that, because of the size of the European Union and its economy, as well as the potentially large number of entities requiring '.eu' domain names, the registry may become just as exhausted as the gTLD '.com' did, soon after its opening. For that reason the panel of participants has advised either the creation of a whole range of second-level domains, such as '.culture.eu' and '.sports.eu', or restricting domains only to trademark owners.

The original intention of the commission was to have the new country code up and running before the end of this year, but it is unlikely that this goal will be reached. It is now estimated that the new '.eu' domain will become operational in the Spring of 2001. As with the new gTLDs, pre-registration of '.eu' domain names is not possible.

Liberalization of the '.nl' Country Codes

On November 15 2000 a new regulation for the TLD '.nl' came into force, addressing two main issues. First of all, the examination of the inherent quality of the applied name will be abandoned. Under the old regulation the '.nl' registrar, the Foundation for Internet Domain Registration in the Netherlands (SIDN), had the authority to refuse the registration of certain categories of names, such as (i) names that contain or import a general designation that could be misleading and (ii) names that contain the name of a Dutch municipality or province. The new regulation only requires a technical examination. This implies that it will now be possible to register generic names even if there is no qualitative link between that name and the applicant. However, the SIDN will still keep a list of domain names that are reserved or even excluded from registration.

The second aspect of the liberalization is the introduction of personal domain names. Under the old regulation, only entities registered at a Dutch chamber of commerce could apply for a domain name. The new regulations make it possible for individuals to register a domain name. Each individual will only be allowed to register one personal domain name. Since it is possible for several individuals to register the same name, the new regulations provide a labeling system that consists of three numbers placed after the name. A personal domain name for a common Dutch name such as Jan de Vries might look like: 'jandevries018.nl'. People can either choose their own 'label' or have one picked by the SIDN.

Companies wanting to register domain names in the '.nl' domain, will still be required to show a registration at a Dutch chamber of commerce. This requirement may pose problems for foreign companies that do not have a legal presence in the Netherlands. It is possible to get around the requirement by registering the '.nl' domain name in the name of a Dutch trust company. Once a Dutch legal presence has been established, the domain name can be transferred, otherwise the it will simply remain registered in the name of the trust company. The costs of such a registration as well as the maintenance of that registration are very low.

Liberalization of the '.be' Country Code

Under the current system, only companies and organizations have the right to file a domain name application. The names applied for must be:

• different from the ones already registered;
  
  
• acceptable (DNS Belgium's web site contains a description of what is acceptable and what is not); and
  
  
• either the name of the applicant's company located in Belgium or a trademark held by the applicant.

It is also possible to apply for a domain name corresponding to the name of a company under creation or a trademark pending application.

The applicant is required to send a standard confirmation letter by ordinary mail to DNS, Belgium's domain administrator, Marc Van Wesemael, and then a technical registration form by e-mail to [email protected] The applications must be filed by the applicants directly; some Belgian internet service providers offer to assist the applicant in the registration procedure.

Recently, DNS Belgium announced that it will liberalize the TLD '.be'. Since October 2 2000, some information regarding the new system has been made available at the following address: www.forum.dns.be/info. This states that there will be four main changes effective from December 4 2000.

First any name which is not yet registered or put on hold (a name will be put on hold if administrative or legal proceedings are pending for this name) can be applied for, except names that consist of characters other than 'a-z', 'A-Z', '0-9' and '-', that start with '-', or of less than two characters. In other words, the link between the domain name and a trade name or trademark is abandoned entirely. A licence to use the domain name will be granted by DNS Belgium on a first-come, first-served basis as soon as the application is received by the DNS computer system. Such a licence is personal and not transferable, unless the domain name is transferred with the business assets of the licensee or at the issue of the administrative proceedings.

Second, individuals will also have the right to apply for the registration of a domain name. There is as yet no indication that individuals would only be able to register a certain type of domain name (as will apparently be the case for the TLD '.nl'). Accordingly, companies, organizations and individuals will have the same rights.

Third, from the launch of the new system, any application for registration will have to be filed through an authorized registrar (ie, no longer directly with DNS Belgium). The transition from the old to the new system raises a number of questions. At present, no one knows who will be the new authorized registrars. Apparently, any company could become one, as long as it adheres to the conditions imposed by DNS Belgium (by entering into the draft agreement available at www.forum.dns.be/info). Most internet service providers will probably apply to or become authorized registrars. Holders of already registered domain names will have to choose a registrar before December 312001, failing which their domain name will be de-registered.

Finally, the new system will also comprise a mandatory alternative dispute resolution policy for cases where a third party asserts and proves that the licensee's domain name is identical or confusingly similar to a trademark to which he or she has rights. Therefore, the licensee has no rights or legitimate interests in the domain name, and is acting in bad faith. The mandatory administrative proceedings will not preclude any party from bringing proceedings before a court of competent jurisdiction for independent resolution of the dispute. No information is as yet available with respect to the arbitration rules or the administrative panel.

This information might be subject to changes until the final adaptation of the new generic TLDs and implementation of the new registration systems.

For further information on this topic please contact Ruprecht Hermans at NautaDutilh by telephone (+31 20 5414940) or by fax (+31 20 5414700) or by email ([email protected]).

The materials contained on this web site are for general information purposes only and are subject to the disclaimer.