Domain names: registration, regulations, dispute settlement in Argentina

by Digital Rights LAC on July 14, 2015

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The analysis of the Internet’s critical resources represents a challenge and, in that regard, the domain names system, with its rules for registration and settlement of disputes requires permanent attention and revision. In this article we will review the main elements which the DNS consists of and we will then analyze the recent modification of the domain name dispute system in Argentina.

By Tatiana Fij, Civil Rights Association (ADC, in Spanish).

ICANN’s 53rd meeting was held in Argentina from June 21 to June 25. When discussions are being held on the custody of IANA’s functions, on Internet Governance, among other subjects, it is important to review the registration of domain names, the regulation of “generic”, “special”, and “territorial” domain names, ICANN regulations, the NIC Argentina regulations in our country and the mechanisms for dispute settlement.

It is common knowledge that the Internet is the “network of networks.” These computer networks are interconnected through a common communication protocol called TCP/IP (Transfer Control Protocol / Internet Protocol), which is the network’s language. Such protocol assigns each machine a unique number called “IP address”, where lies the identification of each machine connected to the Internet.

The IP address is very difficult to remember because it is made of a big set of numbers. In order to resolve such situation, domain names are used, which are “a mnemonics resource which consists in the code equivalence between these IP addresses (numeric signs) and a set of numbers and/or letters (alphabetical and/or combined signs) which allows users to more easily remember the denominations…”. For example, the IP address 173.246.104.156 is linked to the domain name of this release: http://www.digitalrightslac.net.

Domain names are classified as top-level domains (TLDs) and second-, third-level domains or more (the different subdomains). They are classified as:

1) Generic Top Level Domains, expressed with the acronym gTLD: they can be obtained by any person or entity: “.com” (for businesses), “.net” (for web providers’ computers), “.org” (for organizations).

The new available gTLDs can be seen on ICANN’s website. Currently, ICANN is worried about the new gTLD “.suck”, ran by Vox Populi Registry Inc. Celebrities and companies are registering the domain .sucks in a defensive way to prevent others from using it against them.

2) Special Top Level Domains: they are reserved only for entities which comply with certain requirements in every case: “.edu” (educational institutions), “.gov” (official use), “.int” (organizations with International Treaties and United Nations’ non-governmental organizations with “observer” status), and “.mil” (military use).

3) Country Code Top Level Domain: they give the virtual surfer a relative notion in regards to the origin of the website they are visiting. This is achieved by including the two-digit code of identification of country set by the international regulation ISO-3166 at the end of the domain name. For example: “.ar” (Argentina), “.fr” (France), “.br” (Brazil), etcetera.

All the levels together (the gTLD, the sTLD, and the ccTLD) comprise what is known as DNS (Domain Name System).

The domain is made of three elements: one which indicates that the domain is in the World Wide Web (WWW); another one which establishes a segment called “Second Level Domain” or “SLD” used specifically as an ID (for example: “digitalrightslac”); and another one which constitutes the designation of the level where that domain must be located (gTLD, sTLD, or ccTLD) (for example: “.net”). In our case, the domain name will be www.digitalrightslac.net. The “Second Level Domain” is an intellectual creation by the applicant. This SLD can coincide with other distinctive signs from third parties, which can cause several legal conflicts.

From 1993 to 1998, the regulation system for gTLDs and sTLDs was controlled by Network Solutions Inc. (NSI). Originally, NSI implemented a very simple policy whose fundamental principle was: “first come, first served”, also known as “Priority Principle”.

Based on criticism of this system, in 1998, ICANN’s system entered into force (ICANN is a non-profit private entity). This system was based basically on one fundamental stone: the Uniform Disputes Resolution Policy (“UDRP”). This Policy does not only reflect the “Priority Principle” (first come, first served), but also sets the “Good Faith Registration Principle.” The Policy also has its general procedural rules (ICANN’s “Rules”), whose purpose is to offer uniformity in the procedural area as well.

The UDRP establishes that, among others, the following are circumstances which indicate bad faith registration or use: the registration with the purpose of selling, renting, or transferring the domain name to the brand’s owner or to his competitor, for a value that exceeds the cost of registration of the domain name; or to prevent the brand’s owner or the service brand’s owner from reflecting such brand in a domain name; or with the purpose of hindering a competitor’s business; or for willingly trying to attract, with commercial purposes, through the use of a domain name, Internet users to a website thus creating a probability of confusion with the claimant’s brand.

Besides the traditional settlement of conflicts system, i.e. the judicial one, since 1999, there is the aforementioned UDRP system. Through this system, the restitution action is submitted before a Dispute Settlement Service Provider, who appoints an arbiter (or a group or arbiters, if the parties decide so) who will be in charge of rendering an award to settle the dispute. The most important Dispute Settlement Service Provider is the World Intellectual Property Organization (WIPO)’s Arbitration and Mediation Center, located in Geneva, Switzerland.

The arbitral jurisdiction is binding. Once the arbiter renders a decision, if he decides to lodge the claim, he so informs the registering entity, who must change ownership electronically.

The regulation and administration of the ccTLD was delegated by the IANA (Internet Assigned Numbers Authority) to the governments of each country, for each State to decide whom to entrust this task.

In Argentina, by Decree No. 2085/11, the competencies referred to the administration of the top-level domain Argentina “.ar” were assigned to the Legal and Technical Secretary of the Presidency and the National Board of Registration of Internet Domains was created in the Technical Subsecretary of the Legal and Technical Secretary of the Presidency. Such Board is also known as “NIC Argentina.”

The available domains are:

1. “.com.ar”: any Argentine or foreign individual or legal entity residing in the country or establishing a legal address in the country can access to the subdomain “.com.ar.”
2. “gob.ar”: reserved for the entities belonging to the Argentine Republic’s National, Province, or Municipal Governments.
3. “.int.ar”: to be used by entities which are foreign representations or International Entities located in the Argentine Republic.
4. “.mil.ar”: reserved for entities belonging to the Argentine Republic’s Military Forces.
5. “.net.ar”: subdomain used exclusively by Argentine or foreign entities which provide Internet services and which have a license from the National Communications Commission (now the Federal Authority for Information Technology and Communications – AFTIC) to render services in the Argentine Republic.
6. “.org.ar”: used only by Argentine or foreign non-profit entities or organizations.
7. “.edu.ar”: reserved for official and private educational institutions or their associations. The registration of this domain is done through the University Interconnection Networks Association (ARIU, in Spanish); some requirements must be complied with and it is for free.
8. “.tur.ar”: to be used by tourism companies and travel agencies authorized by the Tourism Secretary.

Since its start, NIC Argentina based its regulation exclusively in the “Priority Principle” and that principle is still in force. In February 2014, the last update of this “domestic” regulation was made through the adoption of resolution 20/2014 by the Legal and Technical Secretary – Presidency of the Nation –, whereby the Regulations for the Administration of Internet Domain Names, the Handbook of Registration of Internet Domain Names and the Glossary of Terms are approved. Currently, to register domain names, it is necessary to sign up with a username and password and to fill out a registration form in NIC Argentina’s official website, by selecting the kind of person to be registered.

Likewise, nowadays, people’s personal details can be verified in collaboration with other organisms.

At present, NIC Argentina is allowed to collect fees for its Internet domain names registration duties, such as registrations, modifications, transfers, disputes, and renewals.

In Section 14 and the use conditions of the Handbook of Registration of Domain Names (Annex II – section 3.1) it is provided that “…NIC Argentina may disable and/or revoke users’ domain names when possible actions are generated which may prejudice third parties, and it will have the power to file the relevant complaint before the competent bodies.”

Another novelty is that all requests for new registrations of domain names and transfers are published in the Argentine Official Bulletin for two days both in its printed version and online (Section 10). Resolution 19/2014 sets forth the creation of a new section within the publication of the Official Bulletin to include these notices and indicates the fees required to do so.

Section 11 provides that “NIC Argentina shall reject, with no prior interpellation needed, requests for registration of already registered domain names, or domain names which it considers to be tortious, discriminatory or contrary to law, moral laws, or good customs, or which may cause confusion, deception or involve the impersonation of national, province, or municipal public dependencies or organisms or those belonging to the City of Buenos Aires or to international organizations.” Section 15 sets forth the possibility of reporting an impersonation through the “Report for False Data” procedure regulated in Annex II of said rule.

The jurisdiction of the Federal Contentious Administrative Courts of the City of Buenos Aires is set forth in Section 30 for all disputes involving the matters regulated.

Each country’s “NICs” have started to implement alternative dispute resolution systems. Many countries simply chose to subscribe to the UDRP’s system. With resolution 20/2014, a new domain name dispute system was implemented (section 2.9 of the Handbook of Registration of Internet Domain Names – Annex II) for those instances where the user, upon verifying the availability of a domain, notices that such domain is registered and considers that he has a better right to it.

The dispute starts with a button which indicates “DISPUTE” when browsing a domain in the search page. Once it has started, the proceeding will continue by email, provided the required fee has been paid (ARS250, approximately USD28). The user must base their claim in writing with the relevant proof to assert his better right.

Thereafter, NIC Argentina advises the current owner of the domain name, who then has ten working days to answer to charges in writing and to produce the evidence he deems adequate.

Finally, NIC Argentina settles the dispute through a resolution by the National Board of Registration of Internet Domains, after the competent areas have intervened, and it notifies the parties about the outcome.

In this work we made reference to the alternative dispute resolution system called UDRP for generic and special domain names to which many countries decided to subscribe. Argentina has not subscribed to this system, but since the resolution 20/2014, a new domain name dispute policy has been implemented.

In our country, the Regulations for the Administration of Internet Domain Names in Argentina, with its corresponding annexes, represents great progress in regards to dispute settlement, though still insufficient.

It would be desirable for the authority regulating this subject to take a step further and that it materializes in an alternative dispute resolution system which will allow, in cases where illegitimacy is evident, to put an end to wrongful appropriations of domain names in the short term and at a reasonable cost, without having to resort to judicial courts.

Image: (CC BY) India7 Network