Norway Norvège Norwegen. Report Q173. in the name of the Norwegian Group - PDF

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Norway Norvège Norwegen Report Q173 in the name of the Norwegian Group Issues of co-existence of trademarks and domain names: public versus private international registration systems 1. Analysis of current

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Norway Norvège Norwegen Report Q173 in the name of the Norwegian Group Issues of co-existence of trademarks and domain names: public versus private international registration systems 1. Analysis of current domain name registration procedures 1.1 Nature of signs What is the status of a domain name in your country? Does the registration of a domain name confer exclusive rights to the proprietor? Can domain names be the subject of dealings such as assignment, mortgage and the like? A domain name under the Norwegian cctld.no is merely an address on the Internet, and is not regarded as an intellectual property right. Hence, the registration of a domain name under the.no does not confer any exclusive legal rights to the name as such. However, as there is only one address on the Internet available on a specific combination of letters and numbers, the registration of a domain name gives the proprietor a factual exclusive access to use such address. The prevailing domain name policy of the domain name registry in Norway states that the registration of a domain name does not provide greater or other rights to the name than the applicant had prior to the application. Registration entails no restriction of the rights others may have to use the name . A.no domain name may be assigned by agreement. Such assignment is made by filing a specific assignment form. The assignee is, equally to the first registrar, required to state that the registration will not infringe any third party rights to the name. The domain name may not be subject to mortgage. In the event of bankruptcy, the bankruptcy estate will take over all the rights of the debtor, including any registrations he may have made. 1.2 Legislation Is there any legislation in your country dealing specifically with domain names and the domain name registry? If so, please describe it. There is currently no legislation in Norway dealing specifically with domain names and the domain name registry. However, a governmental proposal for a specific regulation of the registration of domain names and the domain name registry is currently pending. 1.3 Type of registry Which organisation has been assigned responsibility for the cctld domain in your country? Is this organisation a public or a private entity? If it is a private entity is it subject to a regulator? Is the registry's conduct of business (e.g. the setting of registration fees) subject to judicial or independent review? 1 Norid (the Norwegian Registration Service for Internet Domain names) has been assigned responsibility for the cctld.no. The organisation is a business unit within the private entity Uninett FAS AS, which is a share holding company with limited responsibility. Norid derives its power from IANA (Internet Assigned Numbers Authority), and is not subject to any explicit governmental regulation. However, the Norwegian Post and Telecommunications Authority is considered to have a surveillance and regulatory authority pursuant to the Norwegian Telecommunications Act 3-2 and 7-1. Norid has arrived at a domain name policy in a quasi-governmental manner by sending the proposal for its policy as a green paper for public discussion. The Post and Telecommunications Authority has been consulted on and has accepted the prevailing domain name policy. The fees of Norid are not subject to any specific regulation other than general Norwegian law, such as the Competition Law and the Contract Law. 1.4 National treatment Does the applicant require legal or natural status in your country to register a domain name? The domain name policy for.no requires the holder of a registration to have a national presence in the form of an entity registered at the Register of Legal Entities. A branch office of a foreign company is sufficient to conform to this requirement. Any such entity is required to have a post address in Norway. Private individuals may only register domain names under priv.no. 1.5 Bars to registration Is the domain name registry in your country entitled to reject applications on public policy grounds? If so, on which grounds (e.g. immorality or generic terms)? Pursuant to its domain name policy, Norid may only exceptionally reject applications for domain name registration based on public policy grounds. There are no restrictions as to the registration of generic terms. With respect to immorality terms, the applicant is required to sign a separate form stating that the domain name registration according to his knowledge will not infringe any third party intellectual property rights or otherwise be in breach with any prevailing law, such as illegal profane, discriminatory, libellous, pornographic terms. Apart from this, Norid and the applicants are of course subject to Norwegian law in general, such as the Criminal Code and the Trademark Law. 1.6 Appeals Does the applicant for a domain name have the right to appeal against the refusal of the registry to register a domain name? If so, to which entity and based on what kind of procedure (e.g. arbitration or administrative procedure)? The decisions of Norid may be appealed against within 30 days following the appellant's knowledge of the decision, however, no later than 3 months following the decision. Norid may change its decision. If Norid maintains its decision, the appeal is forwarded to the appellate body, which is a body organised by Norid. The appellate procedure is an administrative procedure, and the decision of the appellate body is final. The appellate body will not consider any appeals from third parties claiming their rights, such as trademark rights, to be violated by the registration. It is furthermore not possible to request cancellation based on general statutory law such as competition law. 2 However, an appellant claiming that, for instance, a registration is a violation of his trademark rights will always have the possibility of bringing an infringement suit before the Norwegian courts, and Norid will always follow an enforceable decision of the courts, ref. the domain name policy 11.1.a. The procedural rules are limited. Norid requires the appellant to file a written appeal stating the grounds for the appeal. Unless Norid changes its decision within 7 days, the appeal will be forwarded to the appellate body. The appellate body will decide the case within 30 days following its receipt of the appeal. Norid will communicate the decision of the appellate body to the appellant within 7 days. Norid is, following its domain name policy, obliged to follow the decision of the appellate body, i.e. to cancel a registration if the appellate body's decision so requires. A governmental proposal for the establishment of a separate appellate body is currently pending in Norway. 1.7 Publication, opposition and cancellation Is the application for or registration of a domain name made public in your country? Is there any procedure available to third parties to oppose such application (prior to registration) or registration? If so, on what (relative or absolute) grounds (e.g. prior trademark registration or generic term) and based on what kind of procedure (e.g. arbitration or administrative procedure)? Is it possible for a registered domain name to be cancelled? If so, by whom and on what (relative or absolute) grounds (e.g. prior trademark registration or generic term)? Is it possible to request cancellation of a domain name based on general statutory law (e.g. unfair competition law)? Which procedure is followed, in the case that cancellation is required? Is the cctld registry liable for domain names which infringe trademarks? The registrations of domain names are not published by way of periodic announcements or notifications. However, anyone may enter the website of Norid and make queries about specific domain names, their availability or the holder of the domain name registrations. There is no opposition procedure, but the appellate procedure is available to those considered to have an appropriate legal interest. The appellate body does only consider whether the registration is in line with the Norid domain name policy, following which the grounds for rejection of an application are very limited, such as registrations based on incorrect information, the domain name is technically in-operative, or the registration with the Registry of legal entities has ceased. Norid has a hands off policy, and takes the position that it is not legally responsible for the registration of any domain name that may constitute infringement of any third party intellectual property rights. However, it may not be ruled out that a registration or maintenance of a registration of a domain name despite notification of an infringement may constitute contributory infringement. 1.8 Maintaining the registration Must use requirements be satisfied in order to maintain the domain name registration? If so, is there any definition of what constitutes use? Is a renewal fee payable, in addition to, or in place of, a maintenance fee? If the domain name is not technically operative, Norid may cancel the registration. However, there are no use requirements in the sense that the domain name must be visible and present on the sites. Norid requires an annual fee in addition to the registration fee. 3 1.9 Generic Top-Level Domains (gtlds) Are gtlds subject to regulatory control in your country? If so, in what ways? Are there any differences to the treatment of cctlds? If so, what are they? The gtlds are not considered to be subject to regulatory control in Norway. 2. Proposals for adoption of uniform rules 2.1 Nature of signs Should the registration of a domain name confer exclusive rights to the proprietor? Should domain names be subject of dealings such as assignment, mortgage and the like The registration of a domain name should not confer any exclusive rights to the proprietor; in as far as the grant of such rights should remain with the trademark authorities. Furthermore, there is in our view a need to maintain the possibility for registration of practical generic terms for a lot of businesses. Such registrations should not cause any monopolisation of generic terms by way of granting exclusive rights to the name as a sign. Domain names may be subject to dealings, but only in the quality as an address on the Internet. 2.2 Legislation Should legislation be enacted to deal specifically with domain names and domain name registries? The grant of Internet addresses is a benefit of scarcity. The procedure for registration and maintenance of the registrations as well as disputes over the registrations obtained should preferably be governed by law and surveyed by a competent governmental authority. 2.3 Type of registry Do you think the domain name system should be administered by public or private entities? If you think that the DNS should be administered by private entities should they only perform technical functions or should they also perform policy functions? If you think that they should only perform technical functions who should perform the policy functions? What do you think Government's involvement in a privately administered DNS should be? If the DNS is administered by private entities do you think that their actions should be subject to a regulator and to an independent review? If so, which institutions should perform these functions? If you think that the DNS should be administered by public entities which institutions should perform the technical and policy functions? Should the assignment of gtlds and the key internet co-ordination functions (e.g. the stable operation of the Internet's root server system) be performed by a treaty based multi-governmental organisation? If so, should an existing organisation such as WIPO or ITU be tasked with these functions or should a new one be created? The DNS may very well be administered by private entitles, provided that the activities of such entities are governed by law and surveyed by a governmental authority. The domain name registry should perform technical matters, but also certain policy functions within the framework of law and governmental regulations. Such policy functions could be to establish and administer the domain name policy as well as to consider and decide on individual cases, within the frame of law and regulations. 4 The Government should be given the competence to veto against or even designate the entity to be responsible for handling the cctld.no. Otherwise, the Government's involvement should preferably be limited to give the necessary regulations in order to sufficiently safeguard the relevant private and public interests, and to survey that such regulations are followed. The Government or such other public entity that it may designate should preferably appoint at least certain members of the appellate body to decide on appeals against the decisions of the domain name registry. In our view the assignment of gtlds and the key Internet co-ordination functions should preferably be performed by a treaty based multi-governmental organisation. We are furthermore of the opinion that an established and highly reputed organisation such as WIPO would be suitable for taking on such assignment. 2.4 National treatment Do you think domain name registries should be entitled to impose restrictions on the application process based on the nationality of the applicant? We are of the opinion that a certain national presence is an adequate requirement. The cctlds are designed to serve as a medium for organisations and businesses directing their activities to the relevant geographic market. This requirement may also serve to avoid the monopolisation of TLDs by a single organisation registering all available domain names on the different cctlds. In Norway the establishing of a national presence may easily be done through the registration of a branch office. Hence, this requirement is in our view not a barrier to entry, provided that the establishment of a national presence follows a simple and predictable procedure. 2.5 Bars to registration Do you think domain name registries should be entitled to reject applications on public policy grounds? If so, on which grounds (e.g. immorality or generic terms)? It is our view that the registry should be entitled to reject applications based on certain public policy grounds such as domain names that clearly will be in conflict with a trademark or company name registration. However, the main rule should be that the registry will register the domain name, and the question of cancellation will be referred to the appellate body. 2.6 Appeals Do you think that the applicant for a domain name should have the right to appeal against the refusal of the registry to register a domain name? If so, to which entity and based on what kind of procedure (e.g. arbitration or administrative procedure)? We think that the applicant, as well as a third party alleging to have a legal interest in the name, should be entitled to appeal against the decisions of the registry. At least certain members of such entity should be designated by governmental authorities. The appeal should be subject to a written procedure, with the right of all parties involved, i.e. the registry, the holder of the registration or refused application as the case may be, as well as any third party having appealed against a registration, to present their view by way of written submissions. The decision of the appellate body should be binding unless any of the parties files a lawsuit against the decision before the courts within a certain time limit, for instance one month following the notification of the decision of the appellate body. 5 2.7 Publication, opposition and cancellation Do you think that the application for or registration of a domain name should be made public? Do you think that there should be a procedure available to third parties to oppose such application (prior to registration) or registration? If so, on what (relative or absolute) grounds (e.g. prior trademark registration or generic term) and based on what kind of procedure (e.g. arbitration or administrative procedure)? Do you think that it should be possible for a registered domain name to be cancelled? If so, by whom and on what (relative or absolute) grounds (e.g. prior trademark registration or generic term)? Do you think it should be possible to request cancellation of a domain name based on general statutory law (e.g. unfair competition law)? If so, which procedure should be followed? Do you think domain name registries should be liable for domain names which infringe trademarks? In our view it would be of advantage if the registry at periodic intervals would publish the domain names recently granted. Such publications may be made on the regular websites of the registry, and it should furthermore provide a search facility. A specific opposition procedure is in our view superfluous if an adequate appellate procedure is established. Furthermore, a cancellation of a domain name registration should in our opinion only take place following a decision of the appellate body, or by court order. The appellate body should in our view not take into account general statutory law such as competition law, in as far as this will be the subject of the competition authorities. If adequate law and regulations of the activities of the registry are established, it is our view that the registry should not be responsible for any possible infringement of third party intellectual property rights. 2.8 Maintaining the registration Do you think that use requirements should be satisfied in order to maintain the domain name registration? If so, what should constitute use? Should a renewal fee be payable, in addition to, or in place of, a maintenance fee? A use requirement may be suitable in order to facilitate the recuperation of domain names that originally were taken by entities with no real interest in the domain name. If such a use requirement should be introduced, the mere technical operation of the domain name is not sufficient, whereas the domain name should be visible on the site as such. In our view a maintenance fee is adequate. 3. Assessment of the trademark registration system Do you think that the publicly administered trademark registration system is adequate and sufficiently efficient as compared with the privately administered system of domain name registration? If not, please explain. We are of the opinion that the publicly administered trademark registration system is a better vehicle for the securing of exclusive intellectual property rights. A domain name registration system which does not grant any exclusive rights will not necessitate the same administrative procedure as the trademark authorities, and may therefore be more efficient. However, there is always room for improvement of the efficacy of the national trademark authorities. 6 4. Miscellaneous Pursuant to the prevailing domain name policy of Norid, the applicant for a domain name is required to declare that according to his knowledge, the registration of the domain name will not infringe any third party intellectual property right. We deem such provision to be useful. We furthermore propose to consider whether such declarations should be accompanied by a simple search report derived from the trademark authorities as well as the Internet sites of the register of legal entities indicating that no identical or confusingly similar marks or company names are registered. In the event that the domain name in question actually is registered by a third party, the domain name may only be registered for the applicant if he can document that he holds certain rights to the name. Such rights could be that the domain name is the company name or the trademark of the applicant. Summary The registration of a domain name under the cctld.no does not confer any exclusive rights to the name. The Norwegian registry will not reject or cancel any domain name registratio
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