Domain Names' Registration in Italy
- Italy
- 02/01/2001
- Studio Legale Gatto
The wide spread usage of the Internet worldwide in the last years, particularly within the entrepreneurial world, has raised new juridical problems which are not easily solved by the legal interpreter.
The most common and controversial questions involve assigning and registering domain names, as well as questions related to the juridical protection, mainly connected to the defense of the distinguishing marks of companies who decided to be on the Internet.
In Italy, the domain names’ registration and the handling of operational registers in general, has been assigned to two newly born organizations, the first one is (RA) Registration Authority Italiana, in charge of the operational functions, and the second one, instituted in 1993 the (NIC), Naming Authority Italiana, is in charge of the promulgation of the rules which the first one has to follow when assigning domain names. In order to guarantee impartiality in their assignations, the two authorities are totally autonomous and distinct.
Despite these problems, up to now no prescribing provision regulated the matter, but the so-called rules of naming, promulgated by the Naming Authority (NIC), have been followed.
Such rules have undergone several changes in the last months, so that assigning the domain names, or rather the second level domain name that compose them, could be more suitable to the problems highlighted during NIC’s last year of activity.
The only rule left of the initial provisions is basically that of “first come first served”, according to which, the right to register a particular domain name is due to the first one who asks for it.
Anyway, with the last two regulations, No. 3.2 of 15.12.1999 replaced by No. n° 3.3.1. of 15.8.2000, NIC has modified the basic rules of the Registration Authority’s functioning. This was in order to make the registration of the second level domain name in Italy easily accessible to foreign operators without a fiscal position on the one hand, and to guarantee the Net against the increasing phenomenon of cyber-squatting on the other hand.
The Rules of Naming in Italy
The main rules of the latest regulations No. 3.3.1. of 15.8.2000, may be summarized as follows:
a. As previously mentioned, names are assigned by the RA according to the chronological order of the inquiries (first come first served).
b. The names contained within the RA register can be assigned to subjects belonging to a country member of the European Unit. Subjects who don’t have a VAT number will be allowed to register only a name per domain. Such rule has radically modified the previous regulations, which allowed only subjects resident in Italy - or who had at least a branch on the territory - to be assigned names.
c. Data needed for the registration, other than the two names to register - a primary and a secondary are:
(i) ■ for companies
1. Registration Number of the Register of Companies
2. VAT number ( if existing )
3. Name and surname of the representative
4. Office address
(ii) ■ for individuals
1. Name and surname of the applicant
2. Place and date of birth
3. Residence
4. Fiscal Code of the issuing UE country
5. (iii) All inquiries must be addressed to the RA in Italian language by letter or fax with attached a written declaration of civil and criminal liability related to the use of the domain, and they also have to indicate the service maintainer in charge. The applicant must also declare that he is aware of the main principles related to the use of Internet.
d. All applications, both those of the service maintainer and those of the applicant, must be directed to the following address: Registration Authority Italiana, Network Information Center c/o Istituto IAT del CNR Via Vittorio Alfieri 1 I-56010 Gezzano (PI) fax +39050542420.
e. The registration procedure foresees two phases: the first one ends when all documents mentioned in point c have been sent. The second one ends when the service maintainer has sent the technical documents. The priority order mentioned in article a (first come first served), comes into force at receipt of the letter of liability mentioned at point c (iii)
f. Once the documents are received, the RA starts up the control procedure. This procedure will involve formal matters related to the application and the letter of liability, as well as technical matters related to data sent by the service maintainer.
g. Should the RA verify any formal and technical contradictions in the inquiries, it will send the service maintainer a request of clarifications or integration of the letter of liability. In this case the RA will be allowed to ask the applicant the documents proving what he has declared in the letter liability.
h. The choice of the registered name is free, and the NIC has arranged a list of the reserved names whose registration is forbidden. This list is accessible on the organization’s web site (www.nic.it).
i. The registration procedure ends only when the domain name is inscribed in the operative register of the RA.
j. Once assigned, he domain name will have to be used. Therefore name servers, when asked, will not have to answer: Not responding, not reachable, not running, non- existent domain, host not found. If not used, the legal ownership of the name can be revoked.
k. Along with the assignation procedure 3.3.1, the NIC has also introduced a specific discipline for the case when the domain name is transferred as a consequence of an agreement between the parts, or together with a company or a branch of the company. In this case, upon receipt of a joined declaration of the assignor and the assignee testifying for the transfer, the RA modifies the ownership. The declaration must contain the data needed to identify the assignee as well as the essential data of the act of transfer and its registration. The new owner will have to provide the RA with the new documents mentioned previously.
The Arbitrary Procedure of Solving Controversies Related to Assigning Domain Names
Following the several controversies that have risen from the assignation of domain names (mainly caused by the buying up of domain names), by promulgating the new regulations the NIC has confirmed the prevision of an amicable arbitration aimed at solving the controversies between the net operators out of court.
The main aim of the provisions is of course to give everyone working in a continuously evolving world a chance to obtain a quick judgement. The arbitration also has the advantage of submitting the controversy to a highly specialized authority in the matter, thus avoiding the uncertainties of devolving the controversy to the ordinary Judges, not always updated during the last innovations of the net.
The applicant can already choose to devolve the controversy to amicable arbitration, by sending the RA the documents necessary to obtain the domain name, thus acknowledging the decisions taken by the board of arbitrators as valid and binding.
The NIC has instituted an “arbitration committee”; among its lists, the net’s users will be able to choose their own arbitrators. The board of arbitrators will therefore be composed of three arbitrators. Two of them will be chosen by the parties among the above mentioned lists, and the chairman will be chosen by the two arbitrators, and he will also be a part of the “arbitration committee”.
The board is deemed constituted from the day following the acceptation of appointment by the chairman. The arbitrators will have to pronounce their decision within 90 days from the constitution of the board.
Once constituted the board will be entitled to regulate the course of the proceedings as they like, as long as the debate between the parties is always guaranteed. In any case, the chairman has to grant a term to submit memorials and documents not inferior to 10 days, as well as a successive term for reply. Also the personal appearance of the parties in front of the board is foreseen, with the clear intention to attempt a conciliation of the controversy arisen. An interesting novelty has been introduced for this particular type of arbitration. That is, the parties have the chance to lodge and exchange memorials through e-mail, thus avoiding paper supports.
The board, upon party request, if the requirements exist, will be entitled to interim injunction concerning the disputed domain name.
The arbitrators decide in equity and they communicate their decision to the two parties by registered letter. Once taken, decisions will not be appealable.
Once the board has rendered its decision, the RA makes it enforceable within 5 working days from receipt of the verdict.
To conclude, it seems evident that the main advantage of the arbitration will be to avoid the cyber-squatter from profiting from the slowness of an ordinary trial and selling domain names that are illegally registered.
The Procedure of Administrative Re-Assignation of the Disputed Domain Name.
In order to guarantee a procedure avoiding recourse to a Judicial authority in case of disputed ownership of the domain names, the last version of the regulations of Naming has introduced a non-jurisdictional procedure that allows to obtain availability of the name in shortened times.
This procedure is carried out by organizations authorized by the Naming Authority Italiana, the choice of the leading organization (within the list of authorized subjects) and therefore the cost of the procedure, being at the expense of the domain name opponent.
If other disputes in front of a judicial authority are already pending on the same name, such as in front of a board of arbitrators, the administrative procedure will be barred. On the contrary, if judicial procedures are started up during the administrative procedure, the latter will be suspended until the pronunciation of the above mentioned authority.
The regulations foresee that action aiming at reassigning the domain name to the applicant is admitted if all the following requirements exist: a. The disputed domain name is identical or such as to bring in confusion with a mark on which the applicant lays claim to, or to his name and surname; b. the present assignee does not have any right on the used name, c. The name has been registered and used in bad faith.
If these three requirements exist the domain name will be reassigned, the same regulations also foresee some indicators and typical circumstances proving that the registration and the preservation of the domain has been carried out in bad faith.
Decisions will not only be published on the site of NIC and that of the leading organization, but also will they be performed by the RA, who will reassign the domain, except if, within 15 days, the organization does not receive documented advice by the losing party that he has started a procedure in front of the judicial authorities, that is an arbitration (as mentioned in the previous chapter).
Of course, if the three above requirements are missing, it is still possible to have recourse to other forms of tutelage such as arbitration and recourse to the judicial authority.
