MONDAY, 24 AUGUST 2009
DRP for ccTLD .ch and .li: procedural peculiarities
The Dispute Resolution Policy for domain names in the ccTLDs .ch and .li (for Switzerland and Liechtenstein) is largely modelled on the Uniform Dispute Resolution Policy (UDRP) by the ICANN. It differs in some aspects though.
In case you wonder why the ccTLD for Switzerland is .ch, and not something more logical like .sl: CH stands for CONFOEDERATIO HELVETICA, "Helvetic Federation".
The most important difference between the UDRP and the Swiss DRP is that under the Swis DRP, prior to the expert's decision, a telephone conference is scheduled during which an expert mediator appointed by the WIPO (not the same that is going to decide the case if there is no settlement) tries to settle the case. This mandatory (if the respondent participates) settlement discussion is not very successful, though: of the 129 complaints brought under the Swiss DRP between March 2004 and March 2009, only 11 were settled by the expert mediator.
Unlike the URDP, the Swiss DRP does without its own definition of what constitutes a "registration in bad faith" of a domain name. The complainant rather has to show that the registration and/or use of the domain name is a clear violation of the Swiss law on distinctive signs (trade mark, personal name, company name or unfair competition). Close cases, therefore, are not to be decided under the DRP, but rather through the courts.
Unlike under the URDP, the complainant under the Swiss DRP has no choice between different arbitration service providers. He must take his complaint to the WIPO Arbitration and Mediaton Center.
The Swiss DRP costs CHF 2,600 (roughly EUR 1,700). It takes in the median 78 days, followed by a 20 day period for the losing respondent to take his case before the Commercial Court of Zurich. If he fails to do so, the domain name is transferred. Language of the proceedings is the language of the contract between the respondent and the registrar (SWITCH; SWITCH both maintains the registry for the .ch and .li TLDs and is also the leading registrar; while there are other registrars, basically nobody uses them). The contract is available in English, French, German and Italian; so far 29 decisions were in English, 28 German, 7 French and 3 Italian.
Like the UDRP, the Swiss DRP does not demand that the respondent receives actual notice of the complaint. The complaint is sent to all the adresses he has registered with the registrar, and the clock starts ticking from the moment of sending, not the receipt. I have suggested to put an obligation on the complainant to transfer the domain name back to the respondent should a competent court (i.e. the Commercial Court of Zurich) decide that the domain name was wrongfully transferred. This would protect the complainant that is not informed of the proceedings and therefore misses the 20 days window to take the case to court without incurring the disadvantages of a requirement of actual notice.
In another post, I will look at some statistics from the Swiss DRP (shameless self promotion: this and the following posts are based on a recently published article of mine in the Swiss law journal "Aktuelle Juristische Praxis, AJP".
Posted by: Mark Schweizer @ 10.06
Tags: Domain name disputes, Switzerland, UDRP,