The out-of-court conflict settlement procedure for domain names bearing the country code for Spain ".es", for which a regulation was approved on 8 November 2005 by the Director General of the public business entity "Red.es", has recently come into operation.
This procedure aims for out-of-court settlements to disputes arising between ".es" domain name owners and third parties claiming prior rights. The procedure is similar to the one used by ICANN regarding generic top level domain names (gTLD).
All ".es" domain name owners will be obliged to comply with this new procedure.
To lodge a complaint according to this procedure, the plaintiff will have to prove his ownership of prior rights on the domain name on which he bases the claim. Prior rights are:
- Names of entities legally registered in Spain, denominations or indications of origin and trade names, trademarks or other industrial property rights protected in Spain.
- Official or generally recognisable names of Spanish public administrations or public entities.
The plaintiff will also have to prove that the registration of the domain name has a speculative or abusive character, thus fulfilling the following three requirements: a) the domain name is identical or similar to the point of causing confusion with another term over which the plaintiff claims prior rights; b) the defendant holds no right or legitimate interest in the domain name, and c) the domain name has been registered or used in bad faith.
The claim may be lodged with any of the of out-of-court conflict settlement service providers accredited by Red.es. The accredited providers are: the Spanish Association of related Electronic Commerce and Marketing (AECEM), the Spanish Association for self regulation of Sales Communications and the Board of the Chambers of Commerce, Industry and Sailing in Spain, as well as the Arbitration and Mediation Center of the World Intellectual Property Organisation (WIPO).
Each provider has a list of experts with an accredited knowledge of Spanish Law, to whom procedures will be assigned, taking into account their availability and knowledge required for each procedure. Experts shall be unbiased and independent, and in the event of this being otherwise, they will be challenged either by the judge or the opposing party.
Once the claim has been received and the provider has verified that there is good cause for the claim, the provider will ask Red.es to block the domain name included in the claim, to prevent ownership of the domain name being transferred to a third party during the procedure.
The expert shall resolve the claim providing the grounds for his decision, after considering the declarations made and the documents submitted by the parties.
It must be taken into account, though, that the substantiation of the out-of-court conflict settlement procedure shall not prevent the parties from going to court by filing legal actions. In this case, the expert shall be authorised to decide whether to stay or continue the procedure.
Red.es will execute the expert’s final decision, either transferring or cancelling the domain name, according to the claim made. But, if, within fifteen days of the decision, either of the parties provides Red.es with a document certifying that legal actions have been initiated before a competent court, the decision will not be effective.
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.