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Introduction Of A New Domain: The Sweden Way

Philippe Rodhain

Network Information Centre Sweden AB (NIC-SE), which is the organization that administers .se domain names, will be introducing a new regime for registration of .se domain names.

Under the new regime, applicants from all over the world will be able to apply for registration of a .se domain name without needing to prove that the desired domain name reflects a company or organization name. There will no longer be preliminary examination of applications for registration of .se domain names nor any restriction on the number of .se domain names per applicant. It will also be possible to register geographical names as .se domain names. However, non-Swedish applicants (those without a permanent business place or address in Sweden) must provide a local contact (i.e. person or entity who is permanently resident in Sweden).

The Early Submission Period

From 2 April to 9 April 2003, there will be an early submission period in which all applicants will be able to apply for pre-registration of .se domain names. Pre-registration grants for .se domain names will be allocated according to a priority system. Those applicants who have an existing tm.se domain name will be given first priority. Priority will then go to applicants who own registered trademarks in Sweden (i.e. Swedish trade marks, European Community trade marks, International registrations having legal force in Sweden) provided that the domain name applied for corresponds exactly with the trademark.

If there are multiple applicants for the same domain name based on registered trademark rights, then the domain name will be allocated to the applicant with the longest standing trademark registration.

Applicants who have neither registered trademarks in Sweden nor .tm.se domain names will also be able to apply for pre-registration grants, but they will be the last group to be considered in the queue for priority.

Allocation Periods

After the early submission period, there will be successive allocation periods: an allocation period for priority pre-registration grants that will be processed between 14 and 21 April 2003, followed by another allocation period for the other pre-registration grants that will start on 21 April 2003. From 28 April 2003, .se domain names will be available on a "first-come, first- served" basis.

An Alternative Dispute Resolution Process

The new regime also includes a mandatory dispute resolution policy known as alternative dispute resolution (ADR). The ADR is intended to provide a cheaper and quicker alternative to litigation for resolution of disputes between domain name holders and parties with competing rights in the .se domain name. The ADR may be applied retrospectively, that is, to domain names registered before 1 April 2003.

To succeed in an ADR action it is necessary for the party (Complainant) bringing the complaint to show that:

  • the disputed domain name is identical with or may be mistaken for a trade mark, trade name, family name, artist name or the title of another party's protected literary or artistic work, which has legal basis in Sweden;
  • the Holder of the disputed domain name has no right or legitimate interest in the disputed domain name; and
  • the disputed domain name has been registered or is being used in bad faith.

The Holder of the disputed domain name shall be deemed to have a right or legitimate interest in the disputed domain name if it is shown that:

  • use or preparation for use of the disputed domain name has taken place in connection with the marketing of goods or services before the dispute resolution commenced;
  • it is public knowledge that the disputed domain name relates to the Holder even if it has not acquired any exclusive right to the expression that constitutes the name; or
  • the disputed domain name is not used for commercial purposes in order to mislead consumers or to harm the reputation of a distinctive trade mark or right.

If the disputed domain name has been registered with a view to selling or transferring it, to preventing the Complainant from using its trade mark as a domain name or to disrupting its business operations, the registration and use of the disputed domain name will be regarded as having been in bad faith.

Should the ADR decision (that will be determined and handed down by independent attorneys) find in favour of the Complainant, the disputed domain name will either be deregistered or transferred to the Complainant.

After the ADR decision has been handed down, the losing party can lodge an appeal before the appropriate Swedish Court within fourteen (14) calendar days.

General

The introduction of this new domain name regime in Sweden is similar to the liberalization of other namespaces which has already occurred among other European Community countries (e.g. The Netherlands in March 2003) or will do so (e.g. Spain).

The ongoing liberalization of domain name regimes in European Community countries seems to foreshadow the forthcoming implementation of a .eu namespace and the concern of national registries to avoid consequent business downturn.

The new Swedish regime includes original elements. For the first time, applicants who have trademarks and domain names can register a domain name in priority over those who only have trademarks. In addition, the scope of the ADR is very broad; any names capable of acquiring rights in Sweden can be invoked in an ADR action. Accordingly, it can reasonably be expected that a number of disputes will arise after the end of the allocation periods.

By Philippe Rodhain, Intellectual Property Lawyer
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