This new arbitration procedure provides for the transfer to the claimant of the ".it" domain name, which is registered and used in bad faith by the respondent.
If you believe that you are entitled to a domain name that has already been registered in country code TLD ".it", or if you think that someone is wrongfully using such a domain name, and you want to avoid litigation before an Italian civil court, you can now compel a domain name registrant to participate in the new Italian Domain Name Administrative Proceedings, recently approved by the Italian Naming Authority.
This new procedure is similar to ICANN’s Uniform Domain Name Dispute Resolution Policy ("UDRP") for the .com, .org and .net TLDs. It is managed by private service providers, such as E-solv, who was approved by the Italian Naming Authority on August 25, 2000. For a trademark owner, it can result in the transfer of the contested domain name if such name was registered and used in bad faith by a respondent who had no rights or legitimate interests in respect of it.
1. The Arbitration Procedure For Assignment Of A Domain Name Before E-Solv
As part of the arbitration procedure, both parties present their respective views on the dispute to a neutral and impartial third party, the panel. Panellists are intellectual property and trademark experts: they will hear the parties' claims in accordance with the Italian Naming Authority Rules.
The first stage is to verify that the domain name registrant has no right to its domain name registration. The second stage is to ascertain whether the claimant/opponent has any right to the given domain name.
Before commencing the procedure for transfer, and before filing the relevant claim, it is necessary to serve formal notice of the opponent's intention to dispute the domain name, by means of registered mail with a return receipt sent to the Italian Registration Authority: once contested, the domain name cannot be transferred by the registrant to anyone who is not party to the proceedings.
After deliberation, the panel will issue a decision that is binding on both parties.
If the final decision is in favour of the opponent, the domain name will be transferred immediately to the opponent, under the supervision of the Italian Registration Authority. If the opponent's claim fails, the domain name remains with the registrant, but the opponent still has recourse to the local civil Italian Courts.
The procedure is supposed to be generally faster and cheaper than using the civil courts, although it is too early to comment on how reliable E-solv will be.
2. "Use" In Bad Faith: The Italian Panel's First Decisions Follow ICANN Case Precedents And The ICANN Policy
In principle, as in the ICANN procedure, the Italian arbitration procedure is applicable only to domain names registered and used in bad faith.
There are currently only a handful of decisions. In two cases - respectively dated October 12, 2000 and November 28, 2000 - the Italian panel has construed "use" according to ICANN case precedents, concluding that an operating page "under construction" was a form of use, where the respondent’s only Web presence under the domain name was a page "under construction".
Presumably, an offer of sale of a domain name could also constitute "use", since "use" - under ICANN’s UDRP - is not necessarily "use" on the Web.
However, it is too early - at present - to foresee the Italian panel's trend in the area: many new claims were filed before E-solv at the beginning of this year, but the relevant decisions are not expected to be issued before April 2001.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.