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14 May 2012
The breakthrough and subsequent boom of the Internet, and the speed with which it has developed, have resulted in an increase in conflicts and abuses related to the improper use of domain names - for example, the unauthorised registration of domain names that include the trademark of a third party.
This procedure is known as 'cybersquatting'. Trademarks play an essential role in the domain name field, with the owners of trademark rights acting as the main promoters of the regulatory process.
Since it is extremely important for companies to register their own trade names or the trademarks they market as domain names (so that internet users can easily locate and access their website), trademark owners have been the main parties damaged by cybersquatting.
However, authoritative legal authors do not agree on the legal nature of domain names - some consider them a sui generis right, while others equate them to a trademark or commercial name.
Except for administrative resolutions passed by the government, no legislation specifically regulates domain names in Argentina. Furthermore, before 2009 no alternative dispute resolution system was available; therefore, when a conflict arose, the interested parties had no choice but to seek a remedy in court.
In November 2009 the Ministry of Foreign Affairs, International Trade and Worship enacted Resolution 654/09, which approved the rules for the registration of '.ar' domain names. By virtue of the new Rule 11 of the resolution, anyone that feels that their rights are being violated as a consequence of the registration of a domain name is entitled to file an administrative claim in order to obtain revocation of such a domain name. Consequently, it is now possible to settle domain name disputes out of court, with NIC Argentina acting as the enforcing authority.
NIC Argentina is entitled to revoke the registration of a domain name provided that such name infringes the subjective rights of a third party. The claimant (whether a natural or legal person) seeking revocation of a registered domain name must prove that it has a right to the name - NIC Argentina may request any means of proof deemed necessary to determine the admissibility of such claims. If multiple claims are duly proven regarding the same domain name, the first to be formalised takes priority for registration.
NIC Argentina will analyse the claim and, if it is considered admissible, will inform the current registrant. After acknowledging receipt of the claim, the registrant may defend its right to the domain name by submitting the corresponding arguments, along with any relevant evidence.
The abovementioned Rule 11 also establishes that:
"in case NIC Argentina cannot determine who has the best right, it shall inform, by e-mail, both the claimant and the registrant of the domain, in which case the parties shall resolve the dispute in a way they considered appropriate."
Availing of a remedy set out in Rule 11, whether successful or not, does not prevent the parties from subsequently bringing the case to court.
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