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Registration and use of domains at ccTLD registry
Which entity is responsible for registration of domain names in the country code top-level domain (ccTLD)?
DNS Belgium is the registry for the .be ccTLD. DNS Belgium also became the operator of the .brussels and .vlaanderen gTLDs.
How are domain names registered?
Domain names are registered through a .be-accredited registrar or reseller of an accredited registrar. A list of accredited registrars is available at www.dns.be.
For how long is registration effective?
The registration is effective for a renewable term of one year.
What is the cost of registration?
DNS Belgium charges €4 (excluding VAT) for each of the following transactions made by an accredited registrar:
- the registration of a new domain name; and
- the yearly renewal of a domain name.
Additional charges are due if a domain name is in quarantine (ie, a maximum period of 40 days during which the domain name is deactivated by the registrant or the registrar, but during which it is not available for registration by a third party without the registrant’s consent). DNS Belgium charges €10 (excluding VAT) for the reactivation of such domain names.
Total registration costs depend on the registrar, who is free to determine their price in return for the services offered.
Are registered domain names transferable? If so, how? Can the use of a domain name be licensed?
Domain names in the .be ccTLD can be transferred. This can be done on the basis of a mutual agreement with the existing domain name holder (registrant) or following a court order or a decision by a panel of the Belgian Centre for Arbitration and Mediation (CEPANI), the competent ADR provider.
A transfer requires the transfer code, which will always be communicated through the incumbent domain name holder (registrant). The new registrant must accept the terms and conditions for registration of the .be domain name and pass on the transfer code to an accredited registrar. The registrar can then set up a name server and submit the transfer request to DNS Belgium to have the transfer executed.
DNS Belgium charges €4 (excluding VAT) for each transfer of an individual domain name to another accredited registrar. Upon completion of the transfer, the domain name will be registered for one year, after which a renewal fee will be due. To enhance the security of a domain name registration, the registrant can block the domain name for voluntary transfer or any other change in the configuration of the domain name upon activation of the Domain Guard service. The Domain Guard service may be temporarily suspended four times a year to give the registrant the opportunity to transfer the domain name or change the configuration (eg, to implement a change of hosting provider). DNS Belgium charges €80 (excluding VAT) a year for the Domain Guard service. An additional fee of €80 (excluding VAT) is due if the Domain Guard service is suspended more than four times a year, in which case the additional fee allows for four additional suspensions.
When a registrar takes over (part of) the business of another registrar, domain names can be transferred in bulk between registrars. For the transfer of a portfolio of domain names between registrars, DNS Belgium charges €0.25 (excluding VAT) per domain name with a minimum of €500 (excluding VAT) per requested transaction.
DNS Belgium also charges €40 (excluding VAT) for the transfer of a domain name in quarantine.
The total costs for a transfer and transfer-related services will depend on the price that is charged by the registrar.
The licensing of domain names is permitted. However, the registrant remains the primary contact for third parties when addressing abuses.
ccTLD versus gTLD registration
What are the differences, if any, with registration in the ccTLD as compared with a generic top-level domain (gTLD)?
Registration of a domain name in the .be ccTLD is done on a first-come, first-served basis, as is the case for the majority of gTLDs. Anyone may register a .be ccTLD.
Domain names registered by private individuals will only show the registrant’s email address and language in the WHOIS database, provided that the registrant only filled in the fields that relate to private individuals.
Belgian courts have jurisdiction regarding domain name disputes in the .be ccTLD, regardless of the place of residence of the registrant.
Registrars in the .be ccTLD are not necessarily accredited by ICANN.
The duration of the redemption grace period is 10 days longer than the redemption grace period for gTLDs. The redemption grace period is 40 days in the .be ccTLD immediately following the deletion of a registration, during which the domain name is put in quarantine. The deleted registration may be restored at the request of the registrant through the registrar that deleted it.
Can the registrant use a privacy service to hide its contact information?
The use of a privacy service is not authorised. However, if the registrant is a private individual, the WHOIS search function will disclose only the email address and the chosen language of the registrant for the purpose of resolving disputes.
Disclosure of registrants’ private details
Under what circumstances will a registrant’s privacy-protected contact information be disclosed? What processes are available to lift a registrant’s privacy shield?
Third parties who would like to know the personal data of a registrant who is a private individual can obtain a lift of the privacy shield upon reasoned request to DNS Belgium. DNS Belgium will assess whether the requesting party has legitimate reasons for disclosure of the privacy-protected contact information; for example, when the requesting party wants to contact the registrant to inform him or her about a trademark infringement that involves the use of the domain name. It will not disclose the requested data unless the requesting party undertakes not to use the requested personal data for any other purpose than that detailed in the request.
Are third parties (such as trademark holders) notified of a domain name registration or attempt to register a domain name? If so, how? If not, how can third parties receive notice?
There is no notification of registration attempts. Interested parties can receive notice of a registration through commercial monitoring services that are available on the market.
Notice to the registrant
Is there a need to notify the domain name registrant before launching a complaint or initiating court proceedings?
There is generally no need to notify the domain name registrant before launching an ADR complaint or initiating court proceedings. Putting the registrant on notice may incite the domain name registrant to transfer the domain name to a third party or straw person.
Transfer or cancellation
What is the typical format for a cancellation or transfer action in court litigation (domains registered in either a ccTLD or a gTLD) and through ADR (ccTLD only)?
Different types of actions are possible, depending on the urgency and the measures that are requested.
An injunction can be sought in summary proceedings before the president of any of the five competent courts of first instance (if the plaintiff does not carry on commercial activities) or the president of any of the five competent commercial courts (if the plaintiff carries on commercial activities). These summary proceedings can be based on the Belgian Domain Name Act, trademark law or unfair commercial practices law. In a first-instance court, the president of the court can order the transfer of the domain name; in a commercial court, the president of the court can order that the respondent ceases use of the domain name. No damages can be granted in summary proceedings.
A plaintiff can claim compensation for damages suffered through proceedings on the merits. Such an action can be based on different grounds, such as trademark law or the law on unfair commercial practices.
In cases based on the Domain Name Act, Belgian courts have jurisdiction over all domain name disputes in the .be ccTLD, regardless of the location of the registrant, and all domain name disputes in other TLDs if the domain name registrant resides or has a registered office in Belgium.
To initiate court proceedings, a writ of summons must be served by a bailiff to the defendant. This writ mentions the hearing date and the court where the proceedings will be initiated. Parties will exchange one or more briefs before presenting their case at a final oral hearing.
DNS Belgium has also developed an ADR procedure in conjunction with CEPANI. This procedure only applies to .be domain name disputes.
The rules of this procedure are inspired by the ICANN Uniform Domain Name Dispute Resolution Policy (UDRP) with some differences. Unlike the UDRP, the terms and conditions of DNS Belgium expressly mention that various rights can be invoked in addition to trademark rights, such as a personal or commercial name or a geographical indication. Bad faith must be proven either at the time of registration or in the use of the domain name, while these are cumulative requirements under the UDRP.
The ADR procedure is initiated through the electronic filing of a complaint with CEPANI. The registrant may file a response. The dispute is then assessed by an independent third-party decision-maker, who is a legal expert in the matter. At first instance, the costs of the ADR procedure paid to CEPANI are refunded to the prevailing complainant.
Choosing a forum
What are the pros and cons of litigation and ADR in domain name disputes? What are the pros and cons of choosing a local forum to litigate a gTLD dispute compared with the ICANN ADR format for the gTLD?
ADR proceedings are faster. Absent any exceptional circumstances, ADR proceedings are resolved in less than two months. Summary court proceedings easily take a couple of months longer and proceedings on the merits quite often take up to a year.
It is also easier to identify the domain name holder in ADR proceedings. Even if no physical address is mentioned in the WHOIS records or if the data is incorrect, ADR proceedings can be initiated and the transfer can be obtained. In contrast, court cases cannot be initiated without the service of a writ of summons to a precisely identified and located defendant.
DNS Belgium will implement an ADR decision ordering the cancellation or transfer 15 days after being informed of the third-party decision-maker’s decision by CEPANI, except if the registrant has started an appeal procedure in time. In contrast, a court order will be implemented if it is final and served to the registrant.
Court proceedings are useful where a dispute is not limited to a domain name dispute. Proceedings on the merits allow claims for damages, which is not possible in ADR proceedings.
The choice of ADR or court proceedings may also affect the language of proceedings. In ADR proceedings, the language depends on the registration agreement, whereas in court proceedings the language of the proceedings will depend on the location of the competent court.
What avenues of appeal are available?
An appeal can be filed against any court judgment. The appeal decision can be questioned before the Court of Cassation (Supreme Court) on limited grounds only. The Court of Cassation does not rule on the merits of a case but only on procedural issues and questions of law. It may refer the matter to another court of appeal.
ADR proceedings relating to .be domain names allow each party to initiate an appeal with CEPANI against the decision of a third-party decision-maker within 15 calendar days following the notification of the decision.
At any time during ADR proceedings, the parties have the option to submit the case to a competent court.
Who may claim
Who is entitled to seek a remedy and under what conditions?
ADR proceedings can be launched by a rights holder or licensee of a brand, trade name, registered name or company name, a geographical indication, a personal name or designation of a geographical entity.
Court proceedings can be launched by anyone having an interest in filing a claim. Remedies can be granted to anyone suffering damages from the registration or use of the domain name.
Who acts as defendant
Who may act as defendant in an action to cancel or transfer a gTLD in local courts?
Actions to obtain the cancellation or transfer of a domain name are normally initiated against the registrant. An action against the registrar or ccTLD registry is also possible if the registrar or, as the case may be, the registry refuses to execute the cancellation or transfer.
Burden of proof
What is the burden of proof to establish infringement and obtain a remedy?
In ADR proceedings, the plaintiff must prove the following in order to obtain the cancellation or transfer of the domain name:
- the domain name is identical to or confusingly similar to a brand, trade name, registered name or company name, a geographical indication, a personal name or designation of a geographical entity in which the complainant has rights; and
- the registrant has no rights or legitimate interests with regard to the domain name; and
- the registrant’s domain name has been registered or used in bad faith.
The balance of probabilities is often applied as the burden of proof in ADR proceedings.
To obtain the cancellation or transfer of the domain name through summary proceedings based on the Domain Name Act, the plaintiff will need to prove the abusive registration of a domain name that is identical or confusingly similar to a distinguishing sign, such as a trademark, personal name or a commercial name. A domain name registration is abusive if it occurred without rights or legitimate interest and with the purpose to harm a third party or to take unfair advantage of the domain name.
The judge has a large margin of discretion over whether to consider a domain name registration abusive. In order to demonstrate that the domain name registrant has no rights or legitimate interest, it is generally accepted that it is sufficient to demonstrate that the existence of rights or legitimate interests is unlikely. The main difference between ADR proceedings and the Domain Name Act is the requirement of ‘registration or use in bad faith’ in ADR proceedings versus the requirement of ‘registration with the aim to cause damages or to obtain an unjustified advantage’ in the Domain Name Act. If no intention to prejudice a third party or to obtain an unjustified advantage was present at the time of registration, but the domain name is used in bad faith afterwards, the complainant will preferably initiate an ADR procedure.
Proceedings can also be based on trademark infringement or unfair commercial practices. General rules of trademark and commercial practices law apply to stop infringing uses of the domain name. In proceedings on the merits, the plaintiff must prove the defendant’s fault, the existence of damages and a causal link between the damages and the defendant’s fault. It is not required to prove that the fault was intentional.
The burden of proof applied in court proceedings tends to be slightly higher than in ADR proceedings.
What remedies are available to a successful party in an infringement action?
In ADR proceedings, a complainant can obtain the cancellation or transfer of the domain name.
Cancellation or transfer of the domain name are also remedies in summary proceedings on the basis of the Domain Name Act. If a domain name registration is considered abusive under the Belgian Domain Name Act, the president of the tribunal may order that the registrant ceases the infringement and, in so far as this may contribute to stopping the infringement, that the order be published.
In summary proceedings that are solely based on trademark law or unfair commercial practices, the president of the tribunal can order that the registrant ceases the use of the domain name, but cannot order the transfer of the domain name or the payment of damages. In order to obtain damages, the plaintiff must initiate proceedings on the merits.
Is injunctive relief available, preliminarily or permanently, and in what circumstances and under what conditions?
Injunctive relief is preliminarily or permanently available through court proceedings based on trademark law or the law on unfair commercial practices. It will be preliminarily available by initiating summary proceedings and permanently available through proceedings on the merits.
How is monetary relief calculated?
Damages can only be claimed in proceedings on the merits. Damages can be calculated on the basis of several factors, such as the loss of gain and the actual damages suffered. These damages can include reputational damages. It is generally accepted that when it is difficult to calculate the exact amount of damages, the court may determine the amount at its own discretion, based on what it considers to be fair and equitable (ex aequo et bono).
An amount for procedural costs and attorneys’ fees can also be granted, depending on the nature and importance of the dispute. This amount is rarely sufficient to cover the actual costs of the proceedings.
Costs that are incurred to stop the abusive registration or use of the domain name, but that are unrelated to court proceedings can be recovered in proceedings on the merits. In a landmark case, the Ghent Court of Appeal ordered a cybersquatter to reimburse all costs related to an ADR procedure, inclusive of attorneys’ fees.
What criminal remedies exist, if any?
The abusive registration or use of a domain name does not give rise to criminal sanctions. However, the use of a false identity to register a domain name may be sanctioned with up to three months’ imprisonment and a fine of between €150 and €1,800.
The registration or use of a domain name will not be considered use of a trademark. However, if a domain name is used to create confusion with a trademark or otherwise constitutes an act of counterfeit, the abusive use of the domain name can be sanctioned with up to three years’ imprisonment and a fine of between €600 and €600,000. The use of the domain name for other criminal activities, such as aiding and abetting child pornography, can also result in criminal sanctions.
Is there a time frame within which an action must be initiated?
Neither the terms and conditions for registration in the .be ccTLD nor the law provide for a deadline to combat trademark infringement or cybersquatting. As a result, a complainant will not be estopped from bringing an infringement action as long as the domain name is registered.
Expiry of rights and estoppel
Can a registrant’s rights in a domain name expire because of non-use. Can a registrant be estopped from bringing an infringement action? In what circumstances?
A registrant’s right in a domain name will not lapse because of non-use. However, long-lasting non-use or the lack of proof of intent to use can result in loss of rights and legitimate interests as well as bad faith.
Damages resulting from the registration of a domain name must be claimed within five years of the discovery of the damage and within a maximum of 20 years since the damage occurred.
Time frame for actions
What is the typical time frame for an infringement action at first instance and on appeal?
ADR proceedings take 55 days on average. An appeal can be lodged with CEPANI within 15 days of the ruling handed down by the third-party decision-maker. The defending party then has seven days to respond to the arguments submitted by the other party. An appeal panel of three third-party decision-makers will be appointed by CEPANI. This panel must make a decision within 30 calendar days of appointment.
In urgent cases, summary proceedings can be handled within a couple of weeks.
The same applies to appeal proceedings.
Court proceedings on the merits can last between 12 and 18 months. In appeal this can even take longer.
Is a case law overview available on procedural or substantive issues? Does the case law have a precedential value?
Case law has no direct precedential value in Belgium, but judges and ADR panels tend to refer to previous decisions.
Case law overviews exist both for court cases and ADR proceedings: Law on Computers 2007, No. 6, p 280 and No. 2, pp 74-87.
Appointment of panellists
Can parties choose a panellist in an ADR procedure involving a ccTLD? Can they oppose an appointment?
CEPANI appoints one third-party decision-maker and a panel of three third-party decision-makers in appeal proceedings (the Appeal Committee).
A third-party decision-maker must notify the complaint manager in writing if circumstances could give rise to justifiable doubt as to his or her independence, in which case CEPANI will appoint another. There is no specific procedure to challenge the appointment of a third-party decision-maker, but nothing prevents a party from notifying CEPANI of circumstances that could give rise to justifiable doubts as to a third-party decision-maker’s independence, if the appointed third-party decision-maker failed to disclose these circumstances.
What is the typical range of costs associated with an infringement action, including pre-litigation procedures, trial or ADR, and appeal? Can these costs be recovered?
The administrative fee charged for the ADR procedure must be paid when initiating the procedure. For up to five domain names, the administrative fee is €1,750. The fee is €2,110 for disputes involving six to 10 domain names. An additional fee must be agreed with CEPANI if more domain names are involved. If the third-party decision-maker rules that the complaint is justified, DNS Belgium will refund the costs to the complainant. DNS Belgium will then claim this amount back from the respondent.
These costs do not include attorneys’ fees, which are usually lower than for court proceedings, given the written nature of the proceedings.
Costs for lodging an appeal amount to €4,050 exclusive of attorneys’ fees. These costs are not automatically refunded.
The cost for filing court proceedings includes the cost for the serving of the writ of summons by the bailiff and the actual filing costs. The total cost varies from €160 to €310. Compensation for procedural costs is granted to the prevailing party and will range from €150 to €30,000 depending on the nature and value of the case.
Update and trends
Update and trends
Are there any emerging trends or hot topics regarding domains and domain names in your jurisdiction?
It is worth noting that CEPANI recently updated its Rules for .be domain name dispute resolution. The latest version came into force on 1 January 2018. In summary, the ADR procedure requires fewer hard copy filings and responses are only to be submitted electronically. Also, there is no longer a 5,000 word limit for complaints or responses.