This article discusses the alternative dispute resolution mechanism for ".tr" domain names in Turkey. It highlights the efficiency of the alternative dispute resolution mechanism and addresses some concerns over the proceeding's transparency.
TRABIS (".tr" Network Information System), established by the Information and Communication Technologies Authority ("BTK"), became operational on September 14, 2022 and undertook the management of ".tr" domain names. Upon the introduction of TRABIS, "first come, first served" principle started to be implemented for 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 was abolished. This new situation resulted in third parties' registration of domain names before the trademark holders register their domain names. As a matter of fact, it has been observed that domain names containing well-known trademarks are registered in the name of third parties. Introduction of "first come, first served" principle necessitates an effective dispute resolution mechanism for domain name disputes.
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 it was before.
According to Article 25 of the Domain Names Regulation, the Dispute Resolution Service Provider shall decide to cancel the disputed domain name and/or transfer it to the complainant if the following conditions are cumulatively met:
- The subject domain name is similar or identical to the trademark, trade name, business name or other identifying signs owned or used by the Complainant in trade;
- The registrant of the domain name has no legitimate interests in respect of the domain name
- the domain name is registered or used in bad faith by the registrant.
In alternative dispute resolution mechanism, the domain name complaint made to the Dispute Resolution Service Providers is notified to the disputed domain name owner within one business day as from the filing date of the dispute. The domain name owner is entitled to exercise their right to respond to the complaint within ten days following the notification of the complaint. Once this process is completed, the panel appointed by the Dispute Resolution Service Provider shall decide on the dispute within fifteen days. The short periods for notification of complaint, submission of response as well as the rapid decision-making process provided by the Dispute Resolution Service Provider make the alternative dispute resolution mechanism efficient and preferable by the right owners. It is also possible to file a court action before the competent authorized courts for infringement of domain names. However, these court actions are more costly and lengthy.
In general, the alternative dispute resolution mechanism for .tr domain names in Turkey is aligned with the international alternative dispute resolution mechanism set forth for generic top-level domains such as ".com", ".net", ".org", ".info", ".biz". However, there is an essential difference in terms of disclosure of registrant, having the disputed domain name, during proceeding for alternative dispute resolution. This may affect the complainant's interests and effective exercise of their right to legal remedies. It is very frequent that domain name owners prefer to keep registrant information confidential in whois records and they tend to be hidden. In a dispute resolution proceeding initiated against generic top-level domains before WIPO, the case manager primarily provides the registrant’s details and informs to the complainant, invites the complainant to modify the domain name complaint based on the registrant information, if preferred. This is a very effective process in terms of proper enforcement of the complainant’s right to legal remedies. Because the complainant, having access to the registrant information, is granted the opportunity to provide more satisfactory additional information and evidence about the use or registration of the domain name in bad faith by the domain name owner. Such practice also allows the complainant to effectively evaluate whether the registrant has legitimate rights or interest in the relevant domain name. In this way the domain name owner can consider strengthening their arguments, for example if it is revealed that there are registered rights of the domain name owner. Or the complainant can even consider withdrawal of the domain name complaint or can submit additional information or evidence why the domain name owner does not have legitimate rights or interests.
In contrast to the dispute resolution proceeding before WIPO, registrant information is not disclosed by Dispute Resolution Service Providers under any circumstances, even during the alternative dispute resolution proceeding or at the end of the proceeding. As a result, domain name complaints are typically submitted without any knowledge about the registrant’s identity. Dispute Resolution Service Providers do not disclose registrant information, even in their final decisions which are publicly published on their websites.
It is worth noting that Article 36 of the Turkish Constitution stipulates that individuals have the right to seek their rights through all legitimate means and remedies. Thus, an individual, who seeks to exercise its right to legal remedies deriving from the law due to infringement of their rights by the disputed domain name, has legitimate interest in knowing the identity of the domain name owner for effectively exercising their rights. It is obvious that the contrary practice would restrict the "right to legal remedies". Disclosure of the registrant information to complainant, having legitimate interest, and allowing the complainant to strengthen their grounds for complaint based on registrant information, especially with regards to proof of bad faith, is vital for the protection of the right to legal remedies.
In conclusion, it is evident that the alternative dispute resolution mechanism, allowing the litigation-free resolution of domain name disputes, operates in an effective and beneficial manner. Yet, we believe that alternative dispute resolution mechanism, allowing the disclosure of the registrant information to those with legitimate interests, would be more effective and preferable procedure for protecting the right to legal remedies.