Nic.tr (".tr" Domain Name Management), established under the auspices of Middle East Technical University ("METU"), has been managing ".tr" domain names and dispute resolution processes related to these domain names since 1991. According to Article 35 of the Electronic Communications Law No. 5809 and the Internet Domain Names Regulation, TRABIS (".tr" Network Information System), established by the Information and Communication Technologies Authority ("BTK"), became operational on September 14, 2022 and has undertaken the management of ".tr" domain names.
TRABIS serves as the system that manages the registration, renewal and operation of ".tr" domain names. Within the scope of TRABIS, the Registry and Registrar model, which is implemented worldwide in accordance with ICANN, has started to be fully implemented in Turkey. Within this framework, services are provided by Registrars approved by TRABIS, which mediate the transactions related to domain names, such as domain name application, renewal and cancellation. Upon the introduction of TRABIS, "first come, first served" principle has started to be implemented for the allocation of domain names such as com.tr, org.tr, net.tr, gen.tr, biz.tr, tv.tr, web.tr, info.tr, bbs.tr, tel.tr, name.tr. The obligation for submitting any documents to prove the rights of the applicant has been abolished. This new situation is expected to result in third parties' registration of domain names before the trademark holders register their domain names.
Dispute Resolution Service Providers, which are granted an activity certificate by TRABIS, have started to handle the alternative dispute resolution process regarding domain names. Accordingly, Dispute Resolution Service Providers evaluate the dispute regarding the domain name by taking into consideration the relevant legislation, case law and judicial decisions through their arbitrators or arbitral tribunals and may decide upon the cancellation of domain names, their transfer to the complainant or the rejection of the complainant's request depending on the request of the complainant. In addition, it is still possible to file a civil court action before the courts for the cancellation of ".tr" domain names, as before.
The Internet Domain Names Regulation has introduced a different scheme regarding the alternative dispute resolution mechanism for domain names registered before the enforcement of TRABIS. Under paragraph 9 of Provisional Article 1 of the Internet Domain Names Regulation and Provisional Article 3 of the Communiqué on Dispute Resolution Mechanism for Internet Domain Names, no application can be filed to the alternative dispute resolution mechanism for domain names that were allocated before TRABIS became operational; however, applications can be filed to the dispute resolution mechanism for these domain names that were renewed after TRABIS became operational.
There is no doubt that it is possible to apply to Dispute Resolution Service Providers against domain names with ".tr" extension registered after September 14, 2022, when TRABIS launched its activities. However, it is possible to apply to Dispute Resolution Service Providers against domain names with ".tr" extension registered before September 14, 2022, only after their renewal date. In other words, applying to Dispute Resolution Service Providers will not be possible until the domain names with the ".tr" extension registered before September 14, 2022 are renewed at a later date. Therefore, under current legislation disputes related to such domain names can only be brought to court.
Given that ".tr" domain names can be registered and allocated for up to five years, it can be considered that the unavailability of an alternative dispute resolution method against a domain name that was registered or renewed for five years right before September 14, 2022, creates a significant loss of rights during this period. This dual regulation may be considered as contradicting the principle of equality set forth in the Constitution and the freedom to seek rights. Indeed, the alternative dispute resolution methods envisaged for domain names are fast and are finalized within a few months, whereas the process takes longer and may take up to several years to be finalized in the case of judicial proceedings before the courts against domain names. Moreover, these proceedings are more burdensome in terms of costs. Furthermore, while the cancellation or transfer of the disputed domain name to the complainant can be claimed in the alternative dispute resolution method, only the cancellation of the disputed domain name can be claimed before the courts. This shows that litigation is less advantageous than the alternative dispute resolution method for domain name disputes. This system, which creates an unequal situation in domain name disputes, should be addressed promptly and the alternative dispute resolution method should be made accessible for domain names allocated and/or renewed before September 14, 2022, through a legislative amendment.
First published by ManagingIP in Apr 20, 2023.