Turkey: Change In Turkey’s Domain Name System: Registration Through TRABIS And Resolution Of Domain Name Disputes Through Arbitration

The first winds of change in Turkey's domain name system dates back to 2008 when the authority to allocate and manage Internet domain names was transferred from Computer Center of the Middle East Technical University to the Ministry of Transport through Article 35 of the Electronic Communications Law. The first action taken by the Ministry of Transport and Communications was to enact a Regulation on Domain Names (the "Regulation") in 2010 for the purposes of regulating principles and procedures regarding management of the ".tr" country code top-level Internet domain names.

The Regulation introduced two major changes to Turkey's Domain Name System: (i) Creation of the .tr Network Information System (the "TRABIS") with respect to registration of domain names; and (ii) Creation of an alternative dispute resolution (the "ADR") mechanism for the resolution of domain name disputes. For the latter, a Draft Communiqué on the Operation of Dispute Resolution Mechanism Related to Internet Domain Names and Dispute Resolution Service Providers (the "Draft Communiqué") has been prepared by examining ADR practices around the world and, in particular, the practices of the Internet Corporation for Assigned Names and Numbers (ICANN) and the Internet Assigned Numbers Authority (IANA). Opinions of public institutions, civil society organizations, universities, and other stakeholders were also obtained in the process. Timing-wise, we are awaiting the activation of the TRABIS, and for the Draft Communiqué to be published on 7 November 2012.

Under the Draft Communiqué, the TRABIS is defined as the system wherein the technical functions of the registry are operated. Persons who wish to register a domain name will have to choose one of the registrars listed on the web page of the Information Technology Authority (the "Authority"). After they choose the Authority for application, they will then have to complete the application form on the web page of the registrar they choose. Registrars are entities who carry out processes such as registration, renewal and cancellation of domain names, and are audited by the Authority. By creating the TRABIS and the registrars, the Draft Communiqué aims to facilitate the registration of domain names, implement the first-come-first-served ideal (the fundamental principle of registration of non-documentary domain names in Turkey), increase the number of registrars, and form a more competitive market. Therefore, the domain name registration which is currently in the hands of only a single authority will be distributed amongst many registrars who will then register the domain names through one system, the TRABIS. In short order, requirements of the registrars, the rules to be observed, and other issues will be determined by the Authority. Within this context, the Authority is conducting a survey to consider the needs of the global Internet community, and is inviting the existing and potential ".tr" registrars to share their opinions.

With the creation of the ADR mechanism, another change brought forward by the Regulation and the Draft Communiqué, Dispute Resolution Service Providers (the "DRSPs"), will be an expeditious alternative to intellectual property courts in the resolution of domain name disputes while, on the

other hand, they will not block the way to the courts. The DRSPs will be institutions that volunteer to commit themselves to operate towards the resolution of domain name disputes through their list of arbitrators that includes at least 10 persons who have expertise in IP rights, trademark law, commercial law or informatics law.

Potential disputes may either be resolved by a sole arbitrator, or by an arbitral tribunal comprised of three arbitrators, depending on the agreement of the parties. In any event, it will be the DRSP who will appoint the arbitrator(s). Thus far, the Middle East Technical University that constituted the authority to register domain names in the past, the Turkish Bar Association, and the Union of Chambers and Commodity Exchanges in Turkey are expected to volunteer to operate as DRSPs.

Within the meaning of the Regulation, a domain name dispute that may be resolved by the ADR Mechanism must have occurred in the following instances: (i) The disputed domain name is similar, or has the same trademark, business name, company name or any other identifying marks; (ii) The owner of the domain name has no rights or legitimate interests in respect of it; and (iii) The domain name has been registered or is being used in bad faith. If all of these conditions exist, injured parties may freely choose a DSRP and file a complaint. However, the complainant may not apply to another DRSP concerning the same dispute until the DRSP that received the initial complaint declares its final decision. The final decision of the arbitrator or the arbitral tribunal may be the (i) deregistration and removal of the disputed domain name in favor of the complainant, (ii) transfer of the domain name to the complainant, or (iii) dismissal of the complaint.

In conclusion, with the Draft Communiqué and its newly established systems, such as the TRABIS, registration and follow-up of domain names in Turkey will become similar to the practices in the US and Europe, and disputes arising from the registration of domain names might be resolved in a much more effective way.

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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