January 18 2011
With the development of an increasingly global economy and the ever-growing use of the Internet, the measures taken by small economies such as Albania for the protection of intellectual property against internet-based infringements should be convergent with globally accepted instruments.(1)
The importance of ensuring adequate and effective protection and enforcement of intellectual, industrial and commercial property rights is affirmed under the Stabilisation and Association Agreement to which Albania is a party, alongside EU member states. Based on this act,(2) Albania aims to take all the necessary measures in order to guarantee that its level of protection of intellectual, industrial and commercial property rights is similar to that existing in the European Union, including effective means of enforcing such rights.
The Law on Industrial Property (9947/2008) already provides for the exclusive right of a trademark owner to use its trademark in the course of business, and to prohibit (with the exception of some cases provided for by law) third-party unauthorised use. Additionally, an author's personal and proprietary rights, as protected under the Copyright Law (9380/2005), are in line with main international legal acts.(3) However, the effective protection of IP rights from internet-based infringement is still far off.
The Electronic and Postal Communications Authority (AKEP) is the authority for the registration and management of country-code top-level and second-level domain names in Albania.(4) Domain names subject to AKEP's registration are:
AKEP's Regulation 02(5) provides for the open registration of '.al' domain names and second-level domain names in the '.com.al', '.org.al' and '.net.al' space (reserved for specific categories) by natural persons, entrepreneurs or commercial companies. However, based on the practice created by AKEP, only Albanian citizens and legal entities with a registered presence in Albania are entitled to register these domain names. The domain names '.gov.al', '.mil.al', '.edu.al', are reserved for public administration and educational institutes.
Under the AKEP regulation, domain names are registered on a first come, first served basis. The applicant may freely choose its domain name, provided that the chosen name:
The registration is effected based on declarations of the applicant, which, under its responsibility, states that the data declared is true and that its request does not conflict with third-party rights and applicable naming rules. AKEP assumes the genuine nature of applicants' declarations and limits its own verifications to technical matters (ie, name server or syntax rules) and to ensuring that the domain name is not on the prohibited list of names. However, AKEP reserves the right to verify at any time that the applicant's declarations are true (ie, for cases of evident infringement of the law or third-party rights). In practical terms, AKEP tends to assume the compliance of the applicant's declaration only under the fifth requirement above - other requirements are usually verified.
Under Article 27 of the AKEP regulation, if a dispute arises between the owner of a '.al' domain name (or a second-level domain name) and a third party in relation to registration of a domain name pursuant to the regulation, the claimant should seek to settle the dispute through either court proceedings or arbitration and mediation, as regulated by Albanian law.
For such disputes, AKEP actions are based on neutrality principles. However, the regulation does not specify further interlinks between arbitration or mediation proceedings and AKEP's actions (ie, blocking a domain name). The relevant articles for blocking a domain name refer only to final court decisions on the dispute.
At present, final court decisions may take years to obtain and no effective arbitration or mediation body exists in Albania. Additionally, AKEP does not require standard consent from applicants on the acceptance of arbitration or mediation proceedings. Therefore, under Albanian law, the means to enforce IP rights and protect them from internet-based infringements - such as cybersquatting(6) or domain grabbing - are lengthy and ineffective.
Through its first internet domain name process,(7) the World Intellectual Property Organisation (WIPO) investigated the relationship between trademarks and internet domains, and recommended the establishment of a uniform dispute resolution procedure to deal with disputes concerning the bad-faith registration and use of trademarks as domain names. As a consequence of the first WIPO process, the Internet Corporation for Assigned Names and Numbers adopted the Uniform Domain Name Dispute Resolution Policy (UDRP).
A wider range of identifiers, other than trademarks, that may be affected by bad-faith registration of internet domain names has been further acknowledged following WIPO's second internet domain name process.(8) Under the UDRP and through its arbitration and mediation centre, WIPO provides an efficient and cost-effective international dispute resolution service for internet-based infringements.
Albania is a WIPO member state and has ratified several international treaties and conventions on the protection of IP rights.(9) However, at present, Albania does not benefit from WIPO's Domain Name Dispute Resolution Service(10) for country-code top-level domains. In the absence of the necessary infrastructure to establish an effective local dispute resolution service for internet-based IP infringements, the use of established international means of alternative dispute resolution, such as the WIPO Domain Name Dispute Resolution Service, may be an effective alternative. However, further coordination between WIPO and local authorities is required.(11)
The adoption of best practices and policies within the domain name system by Albanian authorities will reduce the risk of Albania potentially becoming a safe jurisdiction for bad-faith registrants.
(4) AKEP is Albania's independent public postal and telecommunications regulator, acting under the responsibility of the Internet Assigned Numbers Authority (IANA). The relevant section of the IANA website can be accessed at www.iana.org/domains/root/db/al.html.
"Cybersquatting is an activity that has emerged with the growth of the Internet, and while there is no formal or established definition for the term, it can be referred to generally as the registration and trafficking in Internet domain names with the bad-faith intent to benefit from another's trademark. Cybersquatters seek to capitalize on the investment made by trademark owners and the goodwill associated with the trademark."
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