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Registration and use of domains at ccTLD registry

Registry

Which entity is responsible for registration of domain names in the country code top-level domain (ccTLD)?

The Dansk Internet Forum (DIFO) has the overall responsibility for the ccTLD .dk. DIFO is appointed by the Danish Ministry of Trade and Industry.

DIFO has delegated the day-to-day administration of the .dk domain names to DK Hostmaster A/S (DK Hostmaster), a public limited liability company owned by DIFO.

In Denmark, the administration of domain names takes the form of a sole registry which is administered by DK Hostmaster.

In practice, .dk domains are purchased through a registrar approved by DK Hostmaster, while the contractual relationship is with DK Hostmaster. In February 2018, DK Hostmaster had 210 appointed registrars (web hosting companies) providing registration for .dk domain names.

Method

How are domain names registered?

A domain name is registered online through one of DK Hostmaster’s appointed registrars. Subsequently, the domain name must be activated by confirming the agreement with DK Hostmaster. The registration agreement is concluded between the registrant and DK Hostmaster.

Duration

For how long is registration effective?

A registration period of one, two, three or five years may be chosen. The registration of a domain name is automatically renewed for a new registration period unless the registrant has requested otherwise or neglects to pay the fee for renewal in time.

Cost

What is the cost of registration?

The Danish Internet Domain Act provides that the price of a domain name must be determined by cost. This means that DK Hostmaster does not aim to generate profits.

The registration period fees for the use of a domain name are:

one year: 50 krone

two years: 100 krone

three years: 150 krone

five years: 200 krone

All amounts are inclusive of VAT.

However, total registration costs depend on the possible fees charged by the chosen registrar. The typical total cost for registration will be around 100-300 krone.

Transfer

Are registered domain names transferable? If so, how? Can the use of a domain name be licensed?

Domain names are transferable.

A transfer can be executed by using DK Hostmaster’s online self-service or via a transfer form, unless the domain name is disputed. A transfer may only be executed when all balances owed to DK Hostmaster have been paid.

If a dispute is pending, the domain name may only be transferred with the approval of the management of DK Hostmaster and DIFO or upon a decision to this effect by the Complaints Board for Domain Names (the Complaints Board) or a Danish court of law or arbitration.

A domain name may also be licensed.

It is currently not possible to register a licence agreement by DK Hostmaster. Therefore, in case of licensing, the registrant remains the primary contact person and party to the agreement with DK Hostmaster.

However, if a domain name is trademark-protected, which is often the case, and the licence also includes the trademark, such a licence is registerable in the Danish Register of Trademarks at the request of the proprietor or the licensee; cf. section 40 (2) of the Trademark Act.

It should be noted that so-called warehousing - where a registrant registers and maintains registrations of domain names solely with the purpose of reselling or licensing them to other parties - is expressly prohibited by section 25 (2) of the Danish Internet Domain Names Act.

ccTLD versus gTLD registration

What are the differences, if any, with registration in the ccTLD as compared with a generic top-level domain (gTLD)?

Generally, the .dk ccTLDs are as open and unrestricted as most gTLDs. A .dk ccTLD is assigned and registered on a first-come, first-served basis, and anybody can register a vacant domain name.

There are no specific eligibility requirements or other restrictions as to the type of name that can be registered, except that they must not infringe third-party rights.

According to section 3 of the Danish Internet Domain Names Act, .dk domain names belong to the Danish government. Upon registration, the registrant therefore only acquires the right to the use of the registered .dk domain name. However, as the registration is exclusive and can be upheld for an unlimited period, registration provides a de facto ownership.

Domain name disputes regarding the .dk ccTLD are governed by Danish law - most notably the Internet Domain Names Act - and must be settled before the Complaints Board or before the Danish courts.

According to section 25 (1) of the Internet Domain Names Act, registration and use of a .dk ccTLD must be consistent with ‘good domain name practice’. This section is a general clause applying solely to .dk domain names, enabling the authorities (ie, the Complaints Board and the courts) to make decisions based on fairness. This requirement of compliance with ‘good domain practice’ applies to business owners as well as private individuals.

A great variety of decisions based on this general clause are available at the Complaints Board’s website: www.domaeneklager.dk/en.

The specific legislation regarding .dk domain names is closely linked to thorough and detailed regulation of trademarks, personal names and company names, and to the Marketing Practices Act, with which domains must also comply. The latter contains a general clause (section 3) requiring traders to exercise ‘good marketing practice with reference to consumers, other traders and public interests’.

With the anonymity exceptions mentioned in question 7, the WHOIS database for .dk ccTLDs contains the registrant’s contact information such as name, address and telephone number.

Registrants’ privacy

Can the registrant use a privacy service to hide its contact information?

DK Hostmaster requires contact information for the registrant.

However, physical persons (as opposed to juristic persons) with a Danish postal address have the option of being anonymous in the WHOIS database. Anonymity can be obtained by applying to the Danish National Register of Persons for name and address protection in the register of persons.

Physical persons with a foreign postal address are entitled to anonymity as well, provided that they document to DK Hostmaster that they are entitled to name and address protection according to the legislation in the country where they are resident.

Pre-litigation actions

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?

Information on registrants who are anonymous in the WHOIS database will always be disclosed to the Complaints Board in connection with the hearing of a specific case or to other parties to the extent permitted under other legislation; see section 18 (5) of the Internet Domain Names Act.

Information may in this regard be disclosed upon presentation of a court order or upon proof of a legal interest in the data.

Third-party notification

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?

No notification is given to any third party upon registration of a domain name or an attempt to register a domain name.

Interested parties may in this respect use a commercial monitoring service.

Notice to the registrant

Is there a need to notify the domain name registrant before launching a complaint or initiating court proceedings?

There is no requirement to notify a registrant before launching a complaint before the Complaints Board or initiating court proceedings.

However, it would be advisable to first contact the registrant in order to determine whether the domain can be recovered without costly proceedings.

Transfer or cancellation

Procedure

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)?

Cancellation proceedings or transfer actions can be processed either before the courts or before the Complaints Board. Thus, prior proceedings before the Complaints Board are not compulsory.

Therefore, a party who is entitled to take proceedings against a domain registration can either:

(i) take the complaint to the Complaints Board and then bring the complaint before the courts if the Complaint Board’s decision is unfavorable; or

(ii) simply refer the complaint to the courts directly.

The typical format of each of these two processes is described below.

The Complaints Board (and subsequent court litigation)

The function and competences of the Complaints Board are regulated by chapter 6 of the Internet Domain Names Act, which states the following:

  • the Complaints Board processes disputes between registrants and third parties regarding the registration and use of Danish ccTLD, ie, .dk domains. The Complaints Board is not competent to process disputes regarding gTLDs, which must instead be processed before the Danish courts (provided that Danish courts have necessary territorial jurisdiction); and
  • the Complaints Board is competent to decide upon suspending, erasing, cancelling, transferring, upholding, amending or remitting a ccTLD, whereas the Complaints Board is not competent to decide on damages, compensation or remuneration.

In the handling of cases the Complaints Board comprises three members - a chairman and two expert members with theoretical and practical knowledge. The chairman is a high court judge, and the two expert members are legal experts (currently a law professor and a law PhD). In cases involving non-commercial use of domain names and in cases of fundamental importance, the Complaints Board is supplemented by two additional members: one appointed by Danish consumer organisations and one by the Danish business community.

The objective of the Complaints Board is to process complaints within a period of three months.

The process before the Complaints Board is solely written, and each party is entitled to submit two pieces of special pleading before the Complaints Board.

Anybody with sufficient legal interest can lodge a complaint with the Danish Complaints Board for Domain Names. A complaint is subject to an administrative fee of 500 krone (around €67). For complainants and registrants who use or intend to use the disputed domain name in a non-commercial manner, the administrative free is limited to 160 krone (around €20).

Decisions do not have a delaying effect, but are subject to a four-week grace period before the expiry of which the decision cannot be implemented. After the expiry of this grace period, DK Hostmaster executes the Complaints Board’s decision.

Decisions from the Complaints Board can be brought before the courts within a period of eight weeks.

An appeal from the Complaints Board is processed as regular court litigation, where the matters of damages, compensation and remuneration can be settled.

As the Complaints Board has a high degree of expert knowledge on domains, the courts are often reluctant to reverse the Complaints Board’s specialist estimations.

Court litigation/injunction relief (no Complaints Board proceedings)

If the complainant refers the complaint to the courts directly, the typical course of action for the complainant is to pursue injunction relief, which can be processed faster than regular court litigation.

Injunction relief is a preliminary legal remedy and therefore must be followed by a subsequent confirmatory litigation suit, which must be filed within two weeks. The process of injunction relief is elaborated in question 18.

Alternatively, the complainant could choose to initiate a regular litigation case (without preceding injunction relief). This would, however, be untypical.

Court litigation and injunctions relief are subject to written pre-trial work and pleadings, whereas the trial procedure is oral.

Litigation and injunction relief are processed before the Danish city courts. However, at the request of either party, litigation or injunction relief may be assigned to the Danish Maritime and Commercial Court. Such requests are often sustained.

The parties are free to agree to process disputes before arbitration.

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?

The Complaints Board

The main advantages of the process before the Complaints Board are the limited costs and the short processing time.

Also, as the Complaints Board has a high level of expert knowledge, the board’s technical estimations are not often set aside by the courts. Therefore, board decisions have high precedence.

The main disadvantages of this process are that the Complaints Board does not have competence to reward damages, compensation or remuneration. Therefore, a prevailing complainant must bring the board decision before the courts to be duly compensated.

Court litigation

The main advantage of litigation is the opportunity of claiming damages, compensation or remuneration.

The main disadvantage of litigation is the long processing time and the often excessive costs. The opportunity of processing injunction relief decreases this disadvantage; however, as a subsequent confirmatory suit is required, the total processing time ultimately becomes long.

Another disadvantage is that the city courts often have limited expert knowledge on domain law. Therefore, by taking the complaint directly to the courts, the complainant risks being deprived of an expert opinion.

However, some expert knowledge could be ensured by having the court litigation assigned from the city courts to the Maritime and Commercial Courts.

Local forum for gTLDs

Disputes regarding gTLDs cannot be processed before the Complaints Board, but only before the courts (provided the courts have territorial jurisdiction).

The advantage of choosing Danish courts is primarily the opportunity of claiming damages, compensation or remuneration. Also, a prohibition on using the domain issued by Danish courts is subject to penalty.

The main disadvantages of choosing Danish courts are the long processing time and the costs. Also, reaching foreign domain holders and enforcing the judgment upon a foreign domain holder (particularly if the domain holder resides outside of the EU) could prove difficult.

Appeal

What avenues of appeal are available?

Decisions from the Complaints Board cannot be brought before any other public authority or board, but can be appealed to the Danish city courts within eight weeks. Upon the request of either party, court litigation can be assigned to the Danish Maritime and Commercial Court as described above.

Judgments from the Danish city courts or from the Danish Maritime and Commercial Court can be appealed to the Danish High Courts.

Principled High Court judgments of general public interest can be appealed to the Danish Supreme Court with foregoing permission to appeal granted by the Danish Court of Appeal.

However, principled cases of general public interest before the Danish Maritime and Commercial Court can be appealed directly to the Danish Supreme Court with foregoing permission to appeal granted by the Danish Court of Appeal.

Only a few cases are given permission to appeal to the Danish Supreme Court.

Who may claim

Who is entitled to seek a remedy and under what conditions?

Anyone with sufficient legal interest (ie, a significant individual or personal interest) can object to the registration of a domain, seek to have a registered domain annulled or transferred, or seek other remedies. A mere abstract or academic interest in a case does not grant the right to seek remedies.

An owner of a prior right has the required legal interest and therefore can seek remedies. Examples of prior rights are trademarks, domain rights, company names, personal names, business identifiers, brand names and geographical indications.

Subject to section 45 of the Danish Trademark Act, both licensor and a licensee are entitled to seek remedies unless the licence agreement states otherwise.

Who acts as defendant

Who may act as defendant in an action to cancel or transfer a gTLD in local courts?

Only the legal owner (the registrant) of the gTLD is entitled to defend their gTLD before the local courts. A licensee or user of the website may act as defendant of the domain right if agreed upon with the owner or licensor of the domain.

Burden of proof

What is the burden of proof to establish infringement and obtain a remedy?

The burden of proof vests with the rights holder or complainant, who must substantiate that the contested domain violates the rights holder’s prior right, such as a trademark, a domain right, a company name, a personal name, a business identifier, a brand name or a geographical indication.

The required level of evidence to be presented varies. Any piece of evidence is permitted as long as it is relevant.

Remedies

What remedies are available to a successful party in an infringement action?

A prevailing complainant or plaintiff may have an infringing domain suspended, erased, cancelled, transferred, amended or remitted.

Also, a prevailing complainant or plaintiff who has suffered a loss can claim damages.

Further, the prevailing complainant or plaintiff may - regardless of loss suffered - also claim compensation or remuneration as reasonable coverage for the infringement incurred. Usually, compensation or remuneration is granted only for a relatively low amount.

Further, the infringer or domain name owner can be forced to publish the decision on his or her website.

Injunctive relief

Is injunctive relief available, preliminarily or permanently, and in what circumstances and under what conditions?

Under Danish law, injunctive relief is a preliminary remedy that can be processed quickly, usually within a few months.

The owner of a prior right can use the legal remedy of injunctive relief to prohibit the use of a domain provided that the rights owner substantiates or renders it likely that the contested domain violates the rights owner’s rights and that immediate prohibition is necessary.

Injunction is considered necessary if the process of regular court litigation as a result of its longer processing time de facto prevents the rights holder from duly enforcing his or her rights (meaning that the prohibition cannot await regular court litigation).

A rights owner who does not object to an infringing domain without undue delay forfeits the right to process injunctive relief as, because of the rights owner’s passivity, prohibition is not then considered urgent. In such cases the rights holder must settle via regular court litigation.

The claimant must provide due security for the validity of the claim.

As injunctive relief is a preliminary legal remedy it must be followed by a confirmatory suit, which must be filed within 14 days. If the confirmatory suit upholds an issued prohibition, the injunction becomes permanent.

Calculating damages

How is monetary relief calculated?

Monetary relief is calculated in accordance with articles 13 (a) and (b) of EU Directive 2004/48/EC on the enforcement of intellectual property rights.

This means that all appropriate aspects, such as the negative economic consequences, including lost profits, that the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement, shall be taken into account.

Alternatively, the damages may be set as a lump sum on the basis of elements such as at least the amount of royalties or fees that would have been due if the infringer had requested authorisation to use the intellectual property right in question.

Also, a certain amount for incurred legal costs may also be granted, though usually not enough not to cover the actual legal costs.

Criminal remedies

What criminal remedies exist, if any?

Unlawful or abusive domain registration is not itself subject to criminal sanctions.

However, if a domain owner wilfully or with gross negligence infringes a trademark or another IP right, the owner of the domain may be sanctioned with a fine or, in the case of aggravating circumstances, with prison.

Only domains that have been taken into use risk infringing trademarks.

Unused domains may, however, infringe a company name or a business identifier; such infringement is subject to damages, compensation or remuneration, but not to criminal sanctions.

Limitation period

Is there a time frame within which an action must be initiated?

There is no mandatory time frame for cancellation actions or transfer proceedings. However, the right to take proceedings may be forfeited due to years of passivity or tacit acceptance by the rights owner.

Claims for damages, compensation or remuneration are, however, subject to a three-year statute of limitation calculated from the time when the rights owner first became aware or ought to have become aware of the registered domain. The right to damages, compensation or remuneration may also be forfeited before the lapse of this three-year statute of limitation if the rights owner through years of passivity is found to have tacitly accepted the use of the domain.

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 domain name is not subject to compulsory use. Thus, if renewal fees are duly paid, a domain name is not subject to cancellation because of non-use.

However, section 14 (1) (1) of the Danish Internet Domain Names Act grants DIFO the right to require use of domain in their standard terms and conditions. So far, DIFO has not used this right.

Although there is therefore currently no obligation to use .dk domains, the registrant of an unused domain is unlikely to be able to successfully oppose an abusive or similar domain, as an unused domain most likely cannot serve as basis for an objection.

Therefore, the owner of an unused domain name retains the defensive effect (to obtain) but forfeits the offensive effect (to oppose).

An owner of an active domain name also risks forfeiting the right to take proceedings against abusive domains due to years of passivity or tacit approval.

Thus, it is advisable for a domain owner to use the domain and to be aware of the registration of abusive or similar domains.

Time frame for actions

What is the typical time frame for an infringement action at first instance and on appeal?

The typical processing time at the Complaints Board is up to three months.

The time frame for injunction relief is typically also up to three months. However, it is occasionally longer, and the time frame for the subsequent confirmatory suit is typically around one year.

The processing time for regular court litigation varies, but often the time frame is around one year.

An appeal process before the High Courts also often takes around one year.

Case law

Is a case law overview available on procedural or substantive issues? Does the case law have a precedential value?

Case law is a weighty source of law and has high precedential value.

An overview of the Complaint Board’s decisions is available at the board’s website: www.domaeneklager.dk/da/afgorelser.

Also, an overview of the Maritime and Commercial Court’s (which processes most domain cases) decisions are available at the court’s website: www.soeoghandelsretten.dk/soeoghandelsretten/retsafdelingen/shdomsoversigt/Pages/default.aspx.

Further, all Supreme Court judgments may be found at the Supreme Court’s website: www.hoejesteret.dk/om/afgoerelser/Pages/default.aspx.

Finally, Karnov Group and Schultz publish selected Danish judgments of general public interest or legal value, including judgments regarding domain rights. Access to the judgment database is by subscription.

Appointment of panellists

Can parties choose a panellist in an ADR procedure involving a ccTLD? Can they oppose an appointment?

The members of the Complaints Board are appointed for a four-year period by the Danish Minister of Trade and Industry. The parties can neither choose additional members nor oppose the minister’s appointments. In case of incapacity, board members are replaced in the specific case by deputy members, who are also appointed by the minister.

In cases involving non-commercial use of domain names and in cases of fundamental importance, the Complaints Board is supplemented by two additional members, one appointed by Danish consumer organisations and one by the Danish business community. The parties cannot oppose these supplementary members either.

Costs

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?

Costs vary for each case. However, based upon experience the amounts given below are typical.

Pre-litigation costs depend on the strategic analysis to be carried out before initiating a proceeding. Usually, the first step is to forward a cease-and-desist letter to the owner of the domain. The cost of this are typically limited.

If the claimant succeeds in gaining injunction relief and subsequent confirmatory relief, the claimant is entitled to legal costs from the infringer. Conversely, if the claimant loses the injunction relief and confirmatory relief, the claimant must pay legal costs to the counterparty. Legal costs are settled by the courts on the basis of the claims for damages, compensation or remuneration and on the basis of the provided security.

The legal costs granted or imposed by the court rarely cover the actual attorney costs.

Injunctive relief is subject to due security for the prohibition. The amount of the security depends on the economic interest in question and varies considerably.

The attorney’s fee for proceedings before the Complaints Board with subsequent court litigation is often around €25,000-€40,000, whereas the attorney’s fee for injunction relief with subsequent confirmatory case is often €30,000-€50,000; however, depending on the case this amount can be higher.

The costs for an appeal case to the Higher Courts are often around €15,000-€25,000.

It should be noted that costs vary, and these amounts are merely guidelines.

Update and trends

Update and trends

Are there any emerging trends or hot topics regarding domains and domain names in your jurisdiction?

Based on a public hearing in June 2016 about online crime, DK Hostmaster and DIFO launched a number of new actions to reduce the amount of fraud within the .dk domain.

To prevent increasing online crime, both globally and in Denmark, DK Hostmaster and DIFO have implemented new and more stringent requirements for the identification of registrants and users of the .dk domain name.

Thus, in order to increase control of the identity of the person behind a domain name, since November 2017 it has been mandatory to use NemID (a common secure login on the internet) for Danish registrants and users.

Additionally, the former letter-based validation of foreigners and companies that wish to use a .dk domain name has changed to a ‘case by case’ assessment regarding the kind of documentation that a registrant living abroad will be asked to submit. By using information from international databases, DK Hostmaster and DIFO will check whether the domain name, or person or company behind the domain name, gives rise to concern. If so, the foreign citizen or company will be asked to provide identification: passport, identity papers or certificate of registration of the company. For more information on this matter see www.dk-hostmaster.dk/en/news/new-identification-process-customers-living-outside-denmark.