Regulation of the Procedure of extrajudicial Resolution of conflicts in the matter of domain names .es

TITLE I General Dispositions.

Article 1. Scope of application

The present Regulation (in future, “ the Regulation “) will be applied to all the conflict of ownership that is provoked in relation to the registry of names of domain under “ .es ” notwithstanding the legal actions that the Parts can exercise.

An agreed procedure to the present Regulation could not be initiated when is open a procedure of cancellation or verification of names of domain under ” .es ” according to the established thing in the National Plan.

The subjection to the procedure of extrajudicial resolution of conflicts is obligatory for all the holders of names of domain under “ .es ” in accordance with section c) of the unique Disposition of the National Plan.

The presentation of a demand of ownership conflicts will suppose for the Plaintiff the acceptance of all the norms established in the Regulation.

Article 2. Definitions

For the purposes of the present Regulation, it will be understood: Red.es, Registry or Authority of Allocation, the public organization enterprise Red.es, assigned to the Ministry of Industry, Tourism and Commerce through the Secretariat of State of Telecommunications and for the Society of the Information, that it has legally entrusted, in accordance with the Additional Disposition Sixth of Law 11/1998, of 24 of April, General of Telecommunications, the management of the Registry of Names of Domain name under the code of country “ .es ”, corresponding to Spain. Recording agent, legal natural person or properly credited by Red.es for the intermediation in the procedures of allocation and management of the names of domain under “ .es ”.

Agreement of Registry, the agreement between the Recording Agent or the Registry and the holder of the name of the domain.

Demanded, the beneficiary of the registry of a domain name against which a demand according to the Regulation has begun.

Plaintiff, natural person or organization with or without legal personality that presents a demand regarding the registry of a name of domain under “ .es ”.

Previous rights:

1.    We denominate validly of registered organizations in Spain, denominations or indications of origin, commercial names, trademarks or other protected rights of industrial property in Spain.

2.    Well-known civil or pseudonymous names, that they identify professionally, among others, to intellectual creators, political and figures of the spectacle or the sport.

3.    Official or generally recognizable denominations of Public Administrations and organisms Spanish public.

Supplier, the lender of services of extrajudicial resolution of conflicts credited by Red.es. Expert, the specialistic person in extrajudicial resolution of conflicts, in the matter of domain names, with knowledge preferably credited of Spanish Right, named by the Supplier, according to the terms established in the present Regulation to solve a demand regarding the registry of a name of domain under “ .es ”.

Registry of Names of Domain of Speculative or Abusive Character, among others cases, when the following requirements concur:

1.    The domain name is identical or similar until the point to create confusion with another term on which the Department alleges to own Previous Rights: and

2.    The Demanded one lacks rights or I interest legitimate on him domain name: and

3.    The domain name has been registered or used of bad faith.

Tests of Registry or Use of the Name of Domain of bad faith. When:

1.    The Demanded one has registered or acquiring the domain name essentially with the purpose of to sell, to rent or to yield by any title the registry of the name of domain to the Plaintiff who owns Previous Rights or to a competitor of this one, by a certain value that it surpasses the documented cost that is related directly to the domain name; or

2.    The Demanded one has registered the domain name in order to prevent that the possessor of Previous Rights uses the same through domain name, as long as the Demanded one has developed an activity of that nature; or

3.    The Demanded one has registered the domain name essentially with the purpose of to disturb the commercial activity of a competitor; or

4.    The Demanded one, when using the domain name, has tried of deliberate way to attract, with the intention of profit, users of Internet to its webpage or any other, creating the possibility that confusion with the identity of the Plaintiff as far as source, sponsorship, affiliation or promotion of its webpage exists or a product or service that appear in its webpage: or

5.    The Demanded one has realised acts similar to the previous ones to the detriment of the Plaintiff

Article 3. Suppliers of services of extrajudicial solution of conflicts

The procedure regulated in the present Regulation will be embodied before a supplier of services of extrajudicial solution of conflicts credited by Red.es and selected by the Plaintiff. To this end, Red.es will establish a procedure of accreditation based on provided, objective conditions, I am transparent and nondiscriminatory that guarantee the impartiality and independence of the Supplier of services, in addition to their experience and qualification in the field of the extrajudicial resolution of conflicts.

Article 4. Relation of experts

a) The Suppliers will maintain and publish an up-to-date relation of Experts and its professional qualification of public access in their webpages.

b) The Suppliers will be able to modify the relation of Experts based on the needs of the service.

Article 5. Impartiality and independence

The Experts will have to be impartial and independent. Before accepting his appointment, the Expert will have to communicate to the Supplier all circumstance that can create a justifiable doubt on its impartiality or independence.

 If at any time from the procedure new circumstances arise that can create a justifiable doubt on the impartiality or independence of the Expert, this one will have to communicate immediately these circumstances to the Supplier, in which case this one, previous analysis of the circumstances, will be able to replace the Expert appointed initially.

Article 6. Substitution of the Expert

a) The Supplier will be able to replace the Expert when, after his appointment, it considers that circumstances exist that can create justifiable doubts on their impartiality and independence.

b) The Stakeholder in replacing the Expert to understand that she does not reunite to the requirements of impartiality and independence will have to present her writing of rejection in the five natural days that follow their appointment. The Supplier, within five days natural, will decide on the presented rejection unless the Expert resigns to his appointment by own initiative.

c) The Supplier will be able to replace the Expert when both Parts have asked for in writing their substitution in the five natural days following to their appointment.

Article 7. Communications

a) In accordance with the established thing in article 15, the Supplier will notify the Demand to the Demanded one to all the following email addresses postal, electronic or telefacsímil:

1.    the directions corresponding to the holder and person of administrative contact of the domain name object of the conflict who appear in the data base of the Registry, and in addition a

2.    the directions of the demanded one facilitated by the Plaintiff of the Supplier, and if so. A    

3.    the direction of which the Demanded one has notified to the Supplier that wants to be notified.

b) The rest of communications regarding the procedure will take place whenever it is possible by telematics procedures.

c) Any Part will be able to update its data of contact notifying the new data to the Supplier and the Registry, according to the procedures established to the effect in each case.

d) Except for the anticipated thing in the present Regulation or of the decision of the Expert, it will be considered that the communications anticipated in the present Regulation have taken place:

1.    if fax or telefacsímil has been transmitted by means of, in the date that appears in the confirmation of the transmission; or

2.    if they have been transmitted by email electronic, in the date marked in the defense; or

3.    if they have been transmitted by email electronic, in the date in which the communication has been transmitted, as long as the date of transmission is verifiable.

e) Safe in the assumptions that the Expert of motivated form settles down the opposite, all the terms anticipated in Regulation will begin to tell to him as of the oldest date in than it is considered that the communication in accordance with article 7 d has taken place).

f) The Supplier and, from their appointment, the Expert will be able of justified form, to extend of proportionate way the terms determined to this Regulation to request of one of the Parts or by own initiative.

g) From the notification of the Demand to the Demanded one, of all communication conducted by anyone of the Parts, the Expert or the Supplier, copy to the rest of the participants in the procedure mentioned in the present section will be sent.

h) It will be responsibility of that sends a communication documentarily to credit the test of the transmission and/or the circumstances of the shipment. This documentary evidence could be reviewed by the stakeholders.

i) In case the sending Part of a communication receives notification of which this communication indeed has not been given to the adressee, the sending Part will immediately notify the Expert, and case of not being named, to the Supplier, the circumstances in which realised the communication.

Article 8. Language of the procedure

a) The language of the procedure regulated in the Regulation will be the Castilian. Despite the indicated thing previously, the Expert, motivated form, will be able to decide that the procedure step in another language if the circumstances of the procedure therefore require it and the Parts agree.

b) The Expert will be able to demand that the documents presented in languages different from the one from the language of the procedure go accompanied of a total or partial translation to the language of the procedure.

Article 9. Suspension of the procedure

In case anyone of the Parts asked for to the Expert the suspension of the procedure, this one will decide motivadamente on this request and will come, where appropriate, to the suspension during a proportionate term. The procedure will be able to be started again, in any case, when therefore the Expert decides it.

Article 10. Continuation of the unnecessary or impossible procedure

If the Parts reach an agreement on the controversy object from the procedure before the Expert emits his resolution, this one last one will give by finished the procedure.

If, according to the Expert, or of the Supplier, in case of or being named the Expert, the continuation of the procedure becomes unnecessary or impossible by any cause before this one emits its resolution, the Expert if so, or the Supplier will give by finished the procedure, unless a Part, within five days natural, and of motivated form is against to the completion of the procedure.

Article 11. Effectiveness of the judicial procedures

a) The proceedings of the extrajudicial procedure of resolution of conflicts regulated in the Regulation will not prevent to the Parts to go at any time of the same to the competent jurisdiction in relation to the same controversy. In such case, the Expert will be authorized to decide if he suspends, or he finishes the procedure without emitting resolution or continues the same until emitting his resolution.

b) If a Part initiates a judicial procedure regarding the same name of domain after the beginning of a procedure of extrajudicial resolution of conflicts on the same name of domain, it will have to notify the beginning of this procedure immediately to the Registry, to the Expert and if this one not yet has been named, to the Supplier.

c) In any case, he will be to which establishes the resolution of the jurisdictional organ that has known the controversy object of the regulated procedure of extrajudicial resolution in the Regulation.

Article 12. Tariffs and honoraria

a) The Plaintiff will be responsible for the payment of the tariffs and honoraria of the procedure of extrajudicial resolution of conflicts for names of domain under “ .es ” determined to the scale of tariffs and honoraria of the Supplier.

b) When by cause nonjustified, the Plaintiff stopped of the demand before the notification of the demand to the Demanded one, the Supplier will not be forced to reimburse to the Plaintiff the tariffs and honoraria that one has paid.

c) The Supplier will not realise action some until it has received from the Plaintiff the tariffs and honoraria referred in the section a)

d) If the Supplier has not received the tariffs and honoraria referred in the section a) within ten days natural following to the reception of the Demand, the Supplier will be able to consider that the Plaintiff resigns to the Demand and will give by finished the procedure.

e) The installment of those activities that, in exceptional cases, must be realised according to the Expert, as hearings, views, document recognition corresponds to the Plaintiff, etc

TITLE II Development of the procedure

Article 13. The Demand

a) All natural person or organization with or without legal personality will be able to initiate a procedure of extrajudicial resolution of conflicts being presented three copies printed and/or in electronic format of the Demand before the Supplier and a copy of the same before Red.es.

b) The Demand will have to include as minimum the following information:

i) () the name (s) of domain object of the demand;

II) the name, the mailing dress and of e-mail, and the phone numbers and of telefacsímil of the Plaintiff, as well as, where appropriate, of the authorized representative of the Plaintiff to give help to him in the procedure;

III) the chosen way to receive the communications that are realised indicating the concrete person of contact, as well as the different directions to as much receive communications and documents in electronic format as in another format.

IV) the information and name of Demanded all the (including any mailing dress and of e-mail, as well as the phone numbers and telefacsímil) well-known by the Plaintiff on the way to contact with Demanded or its representative. To this end the information will be able to be facilitated that is based on relations previous to the Demand that allows to make contact with Demanded or its representative and that allows the remission of the Demand in the terms anticipated in article 15;  

v) If so, the Recording Agent of the Demanded one when to appear the Demand;  

VI) Description of the Previous Rights on which the Plaintiff bases his Demand, contributing, where appropriate, copy of the titles that credit their previous right or any other means of test that allows its accreditation of convincing form;

vii) an argumentation (that does not have to surpass the limit of 5,000 words) of the reasons by which the Registry of Name of Domain is of Speculative or Abusive Character, contributing if so, any type of test that allows to credit this Registry of Name of Domain of Speculative or Abusive Character, in particular,

1.    The reasons by which the domain name is identical or similar until the point to create confusion with another term on which the Plaintiff alleges to own Previous Rights: and

2.    The reasons by which it must be considered that the Demanded one lacks rights or I interest legitimate on the name or names of domain object of the demand; and

3.    The reasons by which to have to consider itself that the domain name has been registered or is being used the bad faith.

viii) the pretension that is tried to obtain, that is to say the transmission of the name of domain to the Plaintiff or the cancellation of the same;

ix) the identification of any judicial procedure, verification or cancellation, or another nature of which it has knowledge that has been begun or finished in relation to the domain name object of the Demand;

c) The presentation of the Demand will suppose for the Plaintiff, with respect to any resource to the decision that is taken in the procedure, the resignation of the Plaintiff to the charters which they could correspond to him and the express submission to the jurisdiction of the courts and courts of the city of Madrid.

Also, the presentation of the Demand will suppose the resignation of the Plaintiff to any legal action or of another nature against Red.es, to the Recording Agent, the Supplier or the Expert, as well as to his directors, civil servants, employees and agents, except in case of fraudulent or guilty infraction

d) The Plaintiff will include in the Demand a declaration responsible for which the information contained in the same, to its loyal one to know and to understand, completes and exact, and that the Demand does not appear of abusive form.

e) The Demand will be able to contain pretensions exceeds more of a domain name as long as the domain names are ownership of the same Demanded and the Plaintiff alleges to own Previous Rights on all of them.

f) In case it exists more than a controversy between the Plaintiff and the Demanded one transacted by the procedure regulated in the Regulation, the Parts will be able to ask for the accumulation of these controversies before an only Expert. This request will take place before the first appointed Expert, unless the Parts agree in designating another Expert.

g) To request of the Supplier, Red.es will verify the data of contact of the Demanded one provided by the Supplier, notifying to this one the correct data available in the data base of the Registry.

Article 14. Blockade of the domain name

a ) Once received the demand and verified by the Supplier the good appearance of straight of the pretension founded on the Registry or Use of the Name of Domain of bad faith invoked in relation to the referred Previous Rights in article 13, the Supplier will ask for immediately to Red.es the blockade of the domain name object of the demand.

b) Once received the request of blockade, Red.es will come immediately to the blockade (of) name (s) from domain object of the Demand during the procedure of the procedure.

c) The blockade of the domain name will consist of the incapacitation to realise:

·         the transference of the ownership of the name of domain to a third party.

·         the loss of the domain name.

·         the modification of the registry data.

In no case the blockade will prevent to the Demanded one to renew the domain name, or to modify the renovation modality.

d) Red.es will notify of form immediate the accomplishment of the blockade to the Supplier so that this one continues with the procedure.

e) The suspension of the procedure will not produce the suspension of the blockade, unless the Expert, or, possibly, a judicial organ prepares the opposite.

f) The completion of the procedure will produce the suspension of the blockade, unless a judicial organ prepares the opposite.

Article 15. Notification of the demand to the Demanded one

a) It will be considered to all the effects that the date of beginning of the procedure are the date of notification of the Demand to the Demanded one.

 

b) Once received the notification of the accomplishment of the blockade, the Supplier will send the Demand to Demanded in the form established in the article 7 and within five days natural from the effective certainty of the payment of the tariffs and honoraria that the Plaintiff has to satisfy in accordance with article 12.

The Supplier, where appropriate, will send a copy of the Demand to the Recording Agent of the Demanded one.

c) In case the Supplier considers that the Demand presents excusable defects will notify this fact to the Parts, granting to the Plaintiff five days natural for its rectification. Passed this term without the Plaintiff has presented the documentation necessary to correct the defects of the Demand, it will be considered that the Plaintiff stops of the same, notwithstanding the possibility of presenting a new Demand. The Supplier will notify to the Parts, Red.es, and if so, to the Recording Agent the possible dropping of the claim of the Plaintiff.

In case, according to the Supplier, the documentation presented by the Plaintiff is not sufficient to correct the stated defects, the Supplier will give by finished the procedure notwithstanding the right of the Plaintiff to present a new Demand.

Article 16. Writing of Answer to the Demand

a) Within twenty days natural as of the date of beginning of the procedure, the Demanded one will send printed writing of answer and/or in electronic format (except those Annexes that is not available in this format), to the Supplier and the Plaintiff simultaneously.

b) The Answer will have to include as minimum the following information:

1.    The specific answer to the declarations and allegations that appear in the Demand, including all the reasons by which the Demanded one considers that it must maintain the ownership of the domain name object of the controversy (this part of the answer writing does not have to surpass the limit of 5,000 words);

2.    The name, the mailing dress and of e-mail, and the phone numbers and of telefacsímil of the Demanded one, as well as, where appropriate, of the authorized representative of the same to give help to him in the procedure;

3.    The chosen way to receive the communications that are realised indicating the concrete person of contact, as well as the different directions to as much receive communications and documents in electronic format as in another format.

4.    The identification of any judicial procedure or another nature of which it has knowledge that has been begun or finished in relation to the domain name object of the Demand;

5.    Any type of documentary evidence on whom the answer writing is based, especially those that credit that the Registry of Name of Domain of Speculative or Abusive Character on the part of the Demanded one has not taken place or that they can weaken the Previous Rights alleged by the Plaintiff.

c) The Demanded one will include in the answer writing a declaration responsible for which the information contained in the same, to its loyal one to know and to understand, is complete and exact, and that the answer writing does not appear of abusive form.

d) In case the Demanded one does not present answer writing, the Expert will solve the controversy being based on the Demand.

Article 17. Appointment of the Expert and term of resolution

a) The Supplier will appoint a chosen Expert between whom they appear in his Relation of Experts, valuing his availability and the required knowledge to solve the procedure.

b) The appointment will take place in the address of the Supplier within five days natural from the reception of the Writing of answer of the Demand.

c) Once it has been named the Expert, the Supplier will send the file to him and will notify the name and the electronic direction of contact of the Expert of the Parts and Red.es.

Article 18. General faculties of the Expert

a) The Expert will direct the procedure in the form that he considers more appropriate for his suitable procedure in accordance with the Regulation. The Expert will guarantee the equality of treatment for the Parts.

b) The Expert will decide on the admissibility of the tests.

c) The Expert will be able to solicit to the Parts, when he considers it pertinent, that contribute to additional explanations or documents to the Demand or the Writing of answer.

d) The Expert will solve on the admissibility of the explanations or additional documents that the Parts are interested in contributing to the procedure in any phase of the same.

Also, the rest of functions and faculties corresponds to the Expert that attributes the present Regulation to him.

Article 19. Hearings

The Parts will be able to propose the accomplishment of actual hearings or by means of videoconference or audioconference. It will correspond to the Expert to solve on the accomplishment of the same. In any case, the Expert will have the faculty to summon to the Parts to an actual hearing or by means of videoconference.

Article 20. Revolt

a) The Expert will be able to continue and to solve of office the procedure when some of the Parts does not fulfill the terms established in the Regulation.

b) The Expert, of motivated and provided form, will determine the effect of the breach of the obligations that according to the present Regulation correspond to him to the Parts.

Article 21. Resolution

a) The Expert will solve the Demand, of motivated form, considering the declarations and documents presented by the Parts.

b) The resolution will be congruent with the pretension of the Demand and it will not be able to decide on questions other people's to the same, and will respect, in any case, the applicable dispositions of the National Plan of Names of Domain under “ .es ”.

c) The Expert will have to send to the Supplier three signed units and the electronic version of his resolution within fifteen days natural following to the reception of the answer writing. 

d) Dictated the Resolution by the Expert, the Plaintiff will not be able to initiate a new procedure based on the present Regulation against the Demanded one with the same pretension, unless they appear tests of essential value for the resolution that could not be known by the Plaintiff at the time of presentation of the Demand.

Article 22. Communication of the decision of the Parts

a) The Supplier will send a copy signed of the decision to the Parts and a copy in electronic format to Red.es, to the Parts, and if so, to the Recording Agents of each of them.

b) Red.es will publish the resolution of the Expert in the page of Internet of public access of the Registry.

Article 23. Implementation of a decision

a) Red.es, safe in the assumption anticipated in paragraph b) of this article, will execute the decision dictated by the Expert.

Supposing that the Expert considers to the Demand, Red.es will transfer the name of domain to the Plaintiff, or will cancel the domain name, according to the cases, once passed the term of fifteen days natural from the notification of the decision, in electronic format, to the Parts and Red.es.

b) If within fifteen days natural from the notification of the decision in electronic format, anyone of the Parts will notify to Red.es a document having credited that has begun a judicial procedure before a competent court, Red.es will suspend the implementation of a decision until the conclusion of this judicial procedure receives a document crediting, unless the judicial organ determines the opposite.

TITLE III final Dispositions

Article 24. Exoneration of responsibility

The Supplier and the Expert will not be responsible in front of the Parts, safe in the case of fraudulent or guilty infraction, because of the activities anticipated in this Regulation.