29 Rights Protection Mechanisms

Prototypical answer:

Response to Question 29 Rights Protection Mechanisms

As required by specification 7 of the new gTLD Agreement, Registry Operator will implement and adhere to any right protection mechanisms (ʺRPMsʺ) that are mandated by ICANN.

Registry Operator will deploy all necessary means to be fully compliant with the existing UDRP for gTLDʹs. To the extent possible, Registry Operator would like to add certain features to the existing UDRP in order to enhance the protection for right holders. The enhanced protection concerns: the use of local languages for UDRP, reimbursement of UDRP fees, cost effective and efficient procedures at the startup of UDRP and a broad scope of protected rights under the UDRP.

Registry Operator will comply with PDDRP, RRDRP (insofar applicable) and URS procedures, and will implement and adhere to the remedies ICANN imposes via those processes.

Registry Operator will implement the required RPMs described in the Trademark Clearinghouse function (once adopted by ICANN), and understands that ICANN may revise such requirements from time to time. Registry Operator will not mandate that owners of applicable intellectual property rights have to use any other trademark information aggregation, notification or validation service in addition or instead of the ICANN-designated Trademark Clearing House. Registry Operator will also deploy a multi-phased Sunrise Period in order to allow trademark holders and various other right holders to protect their rights and to register .brussels domain names matching those rights.

All the mandated and independently developed right protection mechanisms will be included in the registration policy terms & conditions for registrants and in the registry-registrar agreement (where needed) for the TLD.

Registry Operator will also take reasonable steps to investigate and response to any reports from law enforcement, governmental and quasi-governmental agencies of illegal conduct under the TLD, and understands that Operator will not be required to take any action that contradicts applicable law.

The Registry Operator will put measures in place on a continuous basis whereby the rights and legitimate interest of third parties are safeguarded. Details about the implementation of the various right protection mechanisms are included below.

a) Sunrise Period and Trademark Claims services

The Registry Operator will organize the following Sunrise services and Trademark Claims services at the start of the registration process.

1) Sunrise Services

The Registry Operator will implement a Sunrise process, whereby holders of trademarks and certain other rights will be entitled to safeguard the domain names that are identical to the name(s) to which they hold rights.

Prior to the start of normal registrations based upon the ʺfirst come, first servedʺ principle, there will be a multi-phased Sunrise Period. During the first phase of the Sunrise Period holders of (national and European) established trademarks, governmental entities seeking to protect their geographical or social name and entities disposing of a protected designation of origin or geographical indication, will be able to apply for the domain name corresponding to the rights they wish to claim. During the second phase of the Sunrise Period registrants will be able to apply for domain names corresponding with their trade name or company name. Finally, it is also under consideration and subject to further decisions in cooperation with the Government of the Brussels Region, to provide a 3rd Sunrise phase during which private individuals would be allowed to apply for the domain name corresponding with their family name. In all phases of the Sunrise Period, applicants will have to substantiate the applied for domain names with legal proof of the rights they wish to claim. The invoked rights will need to match exactly with the domain name for which the application is introduced and all applications will be validated by an independent reviewer that will perform that function under contract awarded by the Applicant. Holders of trademarks can make use of the services of the Trademark Clearing House and would in that case not need to have their applications validated. Trademark holders that do not want to make use of the Trademark Clearing House may of course also choose to apply directly and have their trademark rights validated by the independent reviewer. Sunrise applications will receive a time stamp and will be validated in chronological order as far as the applicant manages to accompany his application with the required legal proof for the right he wishes to invoke.

Registry Operator estimates that the total Sunrise Period will span a period of 4 months. During the first 2 months only applicants with phase 1 type of rights will be able to file an application. After this initial phase applicants with phase 2 type of rights will be able to introduce their applications for a period of 2 months. During the last month of this second period, also applicants with phase 3 type of rights would be allowed to introduce applications. Applicants with phase 1 type of rights would be able to introduce their applications during the second period but have to realize that their rights will coincide with those of phase 2 type of right holders (during first month of second period) and even those of phase 3 type of right holders (during second month of second period). Also, applicants with rights typical for phase 2 should be aware of the risk for coincidence with the rights applicants wish to claim in phase 3 during the last month of the Sunrise Period.

Registry Operator will provide a technical platform for the introduction of the applications in the different phases and for the upload of legal proof for the invoked rights. Validation of applications could be prepared by legal staff of the Registry Operator but the ultimate validation decision will be made by an independent reviewer and not by Registry Operator nor members of its staff. Registry Operator will launch a request for proposals in order to select an independent reviewer who will be awarded a contract for the validation process.

2) Trademark Claims (Trademark Clearing House)

It is understood that - according to the Trademark Clearing House definition draft dated April 15, 2011 - ICANN is going to define a Trademark Clearinghouse provider who will in turn supply two primary functions (see Section 1.2 of the draft), of which function (ii) (ʺserving as a database to provide information to new gTLDsʺ) will be directly relevant to the operation of this TLD.

It is also understood that ICANNʹs work towards the establishment of such a Trademark Clearinghouse is still in progress. Therefore, it is not yet possible to describe the process by which the Registry will support the Trademark Clearinghouse requirements.

The Registry Operator will, however, implement any reasonable measures and processes that are required by the Trademark Clearinghouse function and the Trademark Claims service.

The Registry Operator will implement the processes of the Trademark Clearinghouse and the Trademark Claims service for at least the duration indicated in ICANNʹs Applicant Guidebook and may even have this process in place for a longer term. In any event will this process remain in place for the whole period of the different Sunrise phases.

b) Safeguard against violation of the TLDs eligibility restrictions

After the various phases of the Sunrise Period as described above, the TLD will be opened up for registrations on ʺfirst come, first servedʺ base. Although Registry Operator and the Government of the Brussels Region still have to decide on the eligibility criteria, it is anticipated that the TLD will be open for registrants worldwide and that no specific link with the Brussels Region will be required from registrants.

Nevertheless, Registry Operator will put in place a number of safeguards against violation of the eligibility criteria. Domain names that are excluded for registration (in case exclusion list would be established) or that not match the technical eligibility standards (not supported IDN scripts or characters, more than 63 characters, ...) will be automatically rejected by the technical registration system. Registry Operator will also perform a screening of all newly registered domain names and will undertake a high level verification of whois contact information. Specific details concerning the efforts that will be made with regard to accuracy of whois data and consequences for domain name holders that provide inaccurate or fraudulent data are answered in question 28. It is to be noted that the specific procedures used to deal with inaccurate or false whois data are also of use in combatting abuses such as phishing and pharming. Registry Operator is already linked with several mailing lists in order to be alerted for phishing, pharming and other abuses involving .be domain names. If domain names are identified in that perspective, Registry Operator immediately proceeds with an in depth verification of the whois contact information of the registrant. In nearly all known cases registrants using domain names for abusive practices such as phishing will not link valid contact data with the registered domain name. In those cases a specific ʺbad whoisʺ procedure is initiated against the domain name holder whereby the domain name is immediately removed from the zone file in order to disable a linked website. In case the registrant data are not updated, the domain name is ultimately deleted at the end of the procedure. It is the intention of Registry Operator to use this procedure also for the .brussels domain names.

Registry Operator will also work together with law enforcement agencies and government entities that report abusive usage of domain names under the TLD. More detail is provided in section g) below.

The verification of eligibility criteria, screening of whois data and cooperation with law enforcement and government will be managed by paralegal and legal staff of Registry Operator. The current staff is already performing those functions for the .be ccTLD and will expand their tasks for the .brussels TLD.

c) Uniform Dispute Resolution Procedures (UDRP) Support

It is understood that ICANNʹs Uniform Dispute Resolution Process mostly concerns registrars. Hence, the Registry Operator does not need to implement any specific process in order to support the UDRP specifically. However, Registry Operator will support registrars in case of UDRP cases around their domain names under the TLD, and will cooperate with approved Dispute Resolution Service Providers in order to assist in their work. Registry Operator is able in that context to provide a secure access to its technical platform allowing a UDRP provider for instance to ʺlockʺ domain names that become subject to a UDRP filing.

As stated above, Registry Operator would like to add certain features to the existing UDRP in order to enhance the protection for right holders and make provisions so that parties can proceed with UDRP in French or Dutch in addition to English. Since .brussels is matching with the territory of the Brussels Region (the part of Belgium with official bilingual (French⁄Dutch) status), it is imperative that the local languages can be offered as procedural language for the UDRP. Furthermore, Registry Operator would also like to implement two additional features that are used for the UDRP process for .be domain names: a reconciliation phase and UDRP fee reimbursement for successful complainants. Often a domain name holder offers to transfer ownership of a domain name once the UDRP procedure has been initiated. In order to avoid unnecessary costs and loss of valuable time, Registry Operator would like to implement a reconciliation phase at the start of the UDRP procedure. If the domain name holder is willing to give up the domain name, the procedure can be kept as short and efficient as possible. Secondly, Registry Operator has been working (for the .be ccTLD) with the principle that a successful complainant is reimbursed for the costs of the UDRP fees he had to pay and that those costs are charged back by Registry Operator from the domain name holder that was held responsible for breaching the rights of complainant. It is a fair compensation for the complainant and helps making UDRP accessible for a broad range of right holders. It is also working positively towards the avoidance of cybersquatting since such behavior might not only lead towards the loss of the domain name but also impose additional costs for the UDRP on behalf of the former holder of the domain name involved. Finally, Registry Operator wants to see the scope for the UDRP broader than only trademarks and related rights. Under the UDRP for .be also geographical names, trade names, company names, names of origin and personal⁄family names are protected. We would like to extend that level of protection also for .brussels.

d) Uniform Rapid Suspension (URS) Support

The Registry Operator will comply with ICANNʹs requirements regarding the Uniform Rapid Suspension (URS) process, and understands that the following services are required (and will be provided) during the operation of the TLD:
- Contact Information: Registry Operator will provide email and other contact information to accredited URS Providers so that Notices and other communication regarding URS cases can be communicated efficiently.
- Notice and Locking of a Domain: Upon receipt of a respective Notice from an accredited URS Provider, Registry Operator will ʺlockʺ the affected domain name within 24 hours by means of putting it into the DISPUTE status. This means that modifications (including transfers) on the domain name and registration data will be rejected, but the name will still resolve in the DNS. Registry Operator will immediately notify URS Provider upon locking the domain.
- Remedies: In order for the URS Provider to implement the Remedy, Registry Operator will subsequently modify the registration (for example, by changing name servers to the URS Providerʹs own hosts), or removed the ʺlockʺ status on the domain, or implement other measures, as instructed by the URS Provider.
- Extend Registration: Registry Operator will support successful Complainants if they wish to extend the registration period for one year at commercial rates.
Registry Operator wishes to note that authentication of URS Providers is a critical issue, since Notices and other instructions may be sent via email to Registry Operator, and email itself does not provide any means of authentication. Hence, additional measure such as cryptographically signing such emails is deemed necessary in order to identify a Notice as authentic, and subsequently authorize requests to the Registry Operator.
URS Providers will dispose of a specific interface giving access to the technical platform of the registry and allowing them to lock a domain name for which the URS procedure has been activated. This access will be granted after signing an agreement with the registry.
If the URS Provider does not want to sign an agreement (or in the event such an agreement would not be established) with the registry, he must submit the Notice to a dedicated e-mail account with the registry (e.g. legal@nic.brussels) and the appropriate support division will take the necessary action to lock the domain name within 24 hours after receipt of the Notice. It is to be noted however, that in such case receipts will only be treated during working days and business hours.

e) Post-Delegation Dispute Resolution Procedure (PDDRP)

The Registry Operator agrees to participate in the procedures required by the Post-Delegation Dispute Resolution Procedure, and be bound to all determinations that are the result of said procedure. The process implemented by the Registry Operator for actual complaints will be as follows:
- Once a Complaint is received electronically or in paper notice form from the Provider, Registry Operator will verify the content requirements of the Complaint, according to section 7.2 of the current PDDRP specification (dated Sep 19 2011). The Complaint will be reviewed by legal staff of the Registry Operator.
- The Registry Operator will notify the Provider about the receipt of a complaint.
- If deemed necessary, the Registry Operator will submit papers within 10 days of receipt of the Complaint.
- Registry Operator will subsequently follow the process regarding implementation of the remedies, as described in the PDDRP specification.

f) Registration Restriction Dispute Resolution Policy (RRDRP)

The Registry Operator also agrees to participate in the procedures required by the Registration Restriction Dispute Resolution Policy, and be bound to the determinations that are the result of said procedure, in accordance to Section 2a of Specification 7 of the New gTLD Agreement. The actual administrative steps for handling Complaints based on the RRDRP will be identically process-wise to the PDDRP process described above.

g) Other Reports

Other reports need to be addressed to the usual support contact with the registry. Any such notices will immediately be transferred to paralegal or legal staff that will examine the report and verify which action can⁄needs to be taken in conformity with the applicable Registration Terms & Conditions.

1) Dispute-related technical functionality in the Registry System

In order to handle any disputes concerning a domain in the .brussels TLD according to the RPMs defined, the Registry Administation Panel includes functionality to manually put domains into the ʺDISPUTEʺ status (see Answer to question 27 - Registration Lifecycle). The dispute related functions base on more than 12 years of experience in managing disputes under the ʺ.atʺ TLD, and provides the following functionality:
- Search for domain names and display WHOIS as well as registrar data
- For each domain, the following tasks can be performed:
- Delete the domain immediately (domain immediately enters PENDINGDELETE state and thus cannot be restored by a registrar)
- Put the domain into the DISPUTE state (which prevents modifications and transfers on the domain name, and also prevents modifications on the associated registrant contact).
- Add the ʺserverHoldʺ status to domain names under DISPUTE (so that the name is excluded from the DNS, and hence technically disabled),
- Remove the ʺserver Holdʺ status from a domain
- Change back domain names in DISPUTE to their previous state (most commonly, ACTIVE).
- For each action, the system allows for selecting one of several ʺreasonsʺ to record with the action.
- An additional free-form text box allows for recording additional information, such as pointers to external documents, or case numbers.
- List all domain names in DISPUTE status
- Display data, reasons, and additional information of domains under DISPUTE
- Display historical data about such cases

2) Request from law enforcement agencies and government entities

Registry Operator has already a number of procedures in place (for .be operations) in order to deal with requests from law enforcement agencies and government entities:
- Requests from law enforcement agencies for blocking or deleting of domain names are carried out within 24 hours after notice for as much as the request is signed by an appropriated magistrate.
- Requests for disclosure of whois contact data for domain names from private holders introduced by law enforcement, government entities or lawyers are examined and answered within 24 hours provided that the requestor has used the correct webform and has sufficient legal grounds.
- Reports and complaints concerning abusive use of domain names (based on content of webpage linked to it) are examined in view of the abuse policy and notice and action policy documents and appropriate action is taken.

Registry Operator intends to deploy the same procedures in order to assist requests and complaints from law enforcement agencies and governmental entities related to the operations for the .brussels TLD.

h) Resourcing plan for implementation and ongoing maintenance

As indicated above, a number of tasks will be carried out by professionals that are not belonging to the staff of the Registry Operator. This concerns mainly the validation of Sunrise applications, the function of the Trademark Clearing House and the tasks to be performed by UDRP and URS Providers. All other tasks will be carried out by support, paralegal and legal staff from the Registry Operator. Currently, those tasks are already being carried out for the .be ccTLD by a team of 5 full time equivalents (FTE). It is the intention of Registry Operator to expand the tasks of these already experienced and skilled staff members in order to include the .brussels operations. If and when necessary, due to the multiplication of the workload, additional staff members will be hired and trained.

Basic functionality regarding rights protections mechanisms (domain locking, tracking of requests) is already implemented in the registry core system, hence no further resources are needed for this initial implementation.

However, it is understood that resources are necessary to implement further measures that require technical interaction with the registry system, as soon as they are clearly defined (especially the trademark clearing house process and sunrise). The implementation effort cannot be foreseen at the time of writing, hence the concrete resourcing plan for the technical part of the implementation and ongoing maintenance cannot be provided. However, the Registry Operator is aware of the fact that during Landrush and Sunrise more resources will be allocated to handle the increased load on the day to day operations as well performing necessary changes on the system after completion of Sunrise and Landrush if instructed by ICANN rules to do so.

Still, the Registry Operator will implement any reasonable measures and processes that are required by ICANN in respect to rights protection and resources will be allocated accordingly to have the functionality available for the operation of the registry.

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