“.tr” domain names had been managed by a platform, “nic.tr”, in Middle East Technical University since 1991 in Turkey. Well, no more.
A long-awaited change has finally entered into force in Turkey. In fact, back in 2010, a platform called “.tr Network Information System” (“TRABIS”) was introduced by Information and Technologies Authority (“ICTA”), via the Internet Domain Names Regulation (“Regulation”). Enforcement of the Regulation was postponed until TRABIS starts operation. Finally, on 14 September 2022, TRABIS became operational, and this recent change is of grave importance.
What changed?
TRABIS (“.tr” Network Information System)
– In the Regulation, TRABIS is defined as a centralized system which facilitates managing of “.tr” domain names by operating the centralized database thereof, creates and updates such database, enables the application of “.tr” domain names and allows all these activities to be conducted efficiently and securely.
– It is noted that TRABIS handles “.tr” domain names only. These domain names can be in the form of a “a.tr”, or “a.b.tr”; “b” in this sense may be second level domains such as “.com”, “.name”, “.net”, “.org”.
Proof of Ownership in Allocation of Domain Names
– Before TRABIS became operational, “com.tr, org.tr, net.tr” domain names were allocated with proof of ownership. In other words, interested parties looking for registering a domain name were under the obligation of proving their rights over such domain name. However, after TRABIS era, for cited domain names, “first come-first served” principle will apply. In other words, third parties will be able to register “com.tr, org.tr, net.tr” domain names without documentation.
– Registering “gov.tr, edu,tr, bel.tr, k12.tr, av.tr, dr.tr, pol.tr, kep.tr, .tsk” domain names will still require documentation, parallel with the application before TRABIS era, and there is not a change in application in this regard.
– Registering “gen.tr, biz.tr, tv.tr, web.tr, info.tr, bbs.tr, tel.tr, name.tr” domain names will not require documentation as before the TRABIS era, and there is not a change in application in this regard as well.
Dispute Resolution
– Before TRABIS, as stated above, “nic.tr” was the main body managing disputes regarding “.tr” domain names. Today, such duty was assigned to Dispute Resolution Service Providers (“DRSP”) by ICTA.
Sale and Transfer of the Domain Names
– Sale or transfer of “.tr” domain names was not possible before the TRABIS era. In contrast, they will be possible thereafter. However, it is stated in the Regulation that sale or transfer of the domain names will came into effect 3 years after TRABIS becomes operational. For the transitional period of 3 years, even though sale of domain names will not be possible, in the below mentioned events, they can be transferred:
o In the event of death, absence or presumption of absence of real persons, domain names can be transferred to their inheritors.
o Legal persons can transfer their domain names for the reasons of mergers or acquisitions.
o Real/legal persons who are owners of trademarks and/or patents may transfer domain names related to such trademarks/patents if they transfer the rights arising from such trademarks/patents.
o Real and/or legal persons who registered their intellectual or artistic works may transfer their domain names related to such intellectual or artistic works if they transfer rights arising from such intellectual or artistic works.
Execution
– In the Regulation, a body called Domain Registrar (“DR”) was introduced. Accordingly, in TRABIS era, transactions such as applications, registrations and renewals will be made with DRs, through TRABIS.
– Domain name owners are under the obligation of choosing a DR published in ICTA’s web-site and transfer their domain names to this DR. Otherwise, even though domain names will be active until the end of the registration period, domain name owners will not be able to carry out operations which normally has to be carried out by DRs.
Potential Pitfalls
– One of the grave dangers came along with this recent shift in application is that the third parties who may try to register domain names consisting of signs such as existing trademarks or tradenames, since documentation proving rights ownership is no longer required for allocation of “com.tr”, “net.tr” or “org.tr” domain names.
– Before TRABIS became operational, a backorder system was introduced. This system was first offered for users keeping in consideration that valuable domain names will be up for first comers, and considerable amount of demand will occur after TRABIS starts operation, since “com.tr”, “net.tr” and “org.tr” domain names will no longer require documentation proving rights ownership.
– Even if the purpose behind introducing such system appear to be easing the transition period and eliminating possible traffic after TRABIS becomes operational, it is seen that this service was used by infringers as well.
– In other words, it seems that it will not be rare to come across third parties who registered a domain name consisting of an existing trademark or tradename, with the help of the backorder service, or with a simple registration after 14th September 2022, date which TRABIS became operational.
– Intellectual property holders can also come across infringers demanding compensation for registered domain names including their existing trademarks or tradenames.
Remedies
– Naturally, it is recommended for IP owners not to compromise, since there exist remedies for such events.
– For instance, one of the potential remedies available is to apply to DRSPs that are listed on the ITCA’s web-site, with the request of transfer or cancellation of the domain name that is the subject of cyber-squatting.
– Pursuant to Regulation, if following pre-requisites exist in a given case cumulatively, a domain name may be cancelled:
o If the disputed domain name is identical or similar to an existing trademark, tradename, company name or any other sign,
o If the registrant of the domain name does not have any connection or a legitimate right to the domain name,
o If the domain name is registered or used with bad faith by registrant.
– Events constituting bad faith are not numerus clausus. Some examples of registrations made with bad faith listed in the Communiqué on Internet Domain Names Dispute Resolution Mechanism (“Communiqué”) are as follows:
o Domain name is registered with the intent of selling or transferring it to the complainant, who is the owner of an existing trademark, tradename, company name or sign, or to complainant’s competitor, in return of a price much higher than what was spent on registration and investment costs of such domain name.
o Domain name is registered for the purpose of hindering the owner of an existing trademark, tradename, company name or sign from using such trademark, tradename, company name or sign.
o Domain name is registered with the purpose of harming commercial competitor’s operations.
o Domain name is used in order to gain commercial advantage and for the purpose of directing users to the web-site of the owner of cited domain name or any other web-site by creating similarity with complainant’s trademark, tradename, company name or sign.
– It must be also noted that other remedies besides applying to DRSPs are available for these types of infringements concerning domain names, where we will touch on a different blog.
– Finally, it is important to keep in mind that remedy of applying to DRSPs are only possible for domain names which registered or renewed after the operation date of TRABIS, namely 14th September 2022.
Conclusion
With the operation of TRABIS, radical changes were introduced regarding allocation of “.tr” domain names. Accordingly, one of the potential dangers IP holders may face is the possibility of infringers who try to take advantage of the new system, where documentation proving rights ownership is no longer required for “com.tr” “org.tr” and “net.tr” domain names. In the event of an infringer registering an existing trademark, tradename or any other sign used in the course of trade, such registration may be challenged if the pre-requisites listed under Regulation are complied.
Author Ecem Gökçe
