Though traditional trademark disputes continue to cause
problems, the increasing importance of the internet has brought
domain name disputes to new prominence. Assigning generic top level
domain names (gTLDs) such as .com, .edu and .gen on a 'first
come, first served' basis has caused domain name disputes
between many registrants. The assignment of country code top level
domain names (ccTLDs) such as .com.tr, edu.tr, info.tr and web.tr
on a document-required basis in Turkey still does not prevent
disputes. So, domain name oppositions and cancellation actions have
become a hot topic in the trademark world.
Although ccTLDs have been assigned by Nic.tr under the aegis of
Middle East Technical University (METU) since 1991, there is still
no legal arrangement for registration, assignment, cancellation, or
dispute resolution proceedings for domain names in Turkey.
Moreover, the draft domain name regulation has yet to be accepted.
For this reason, though the Ministry of Transportation has
authorized the Information Technology and Communication Institute
to take on domain name proceedings (according to the
E-Communication Law of 2008), METU continues to operate domain name
proceedings in Turkey, since there is no valid legal regulation.
Because of this, METU has to operate as a legislative power and
determine its own policies and procedures regarding domain names.
For example, the sale, rental, or assignment of .tr domain names is
not possible in Turkey. Only when the rights certified in the
document upon which the application is based are assigned can the
domain name be assigned to the assignee. Such documents include
trademark applications, registration certificates, or commercial
METU assigns the ccTLDs on a document-required basis in order to
prevent domain name disputes. Within this context, a registrant
wishing to acquire a domain name has to certify (with an
identification certificate, commercial registration
certificate/government license, etc.) its rights to the applied-for
domain name. Alternatively, the registrant may also apply based on
an existing trademark registration/application. Not surprisingly,
most domain name disputes arise from these trademark and
registration-based domain name applications. This is because bad
faith applicants put great effort into registering famous
trademarks (in different classes, to avoid rejections) or
registering a confusingly similar trademark and filing a domain
name application based on this malicious trademark application.
Trademarks owners can choose to oppose domain name applications
within six months. However, METU examines the oppositions according
to its own policies without any judicial review. As METU's
decisions are not based on any law and are not open to judicial
review, initiating a lawsuit before the courts seems to be the most
effective and reliable option at the present moment. However, in
the near future, the Dispute Resolution Committee (which will be
established by the Information Technology and Communication
Institution) will solve domain name disputes. Its decisions will be
appealable in the courts.
To date, the Turkish courts have tended to decide in favor of
cancelling gTLDs. However, the courts take too long to cancel this
kind of domain name. When a cancellation action is initiated and
the decision is rendered, the execution of the cancellation
decision must be enforced by the registrant company, and most
commonly, the registrant companies are not Turkish. If the
registrant company is not located in Turkey, it may be difficult to
enforce recognition of Turkish court orders. Therefore, instead of
taking this risk, it makes sense to use WIPO arbitration for gTLD
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.
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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