Are UAE Courts prepared To Solve Domain Name Disputes?

By Rami Olwan E- commerce legal consultant UAE Network Information Center (UAEnic) has announced that trademark owners who discovered that their trademarks have been registered as ae domain names, may now resolve their domain name disputes either by referring the matter to the arbitration with the World Intellectual Property Organization (WIPO) or local courts that will resolve disputes in accordance with laws and regulation applicable in UAE. The Changes to the registration services has been introduced recently primirlarly to encourage registrant to register ae domain names with the UAEnic and to Prepare the UAE to be a truly enabled e – environment that follows best international standards and practices for solving domain disputes. In this article, we will first consider the conditions that local courts require to fill domain dispute claims, why in our opinion local courts are not prepared to solve those kind of disputes and the steps to be taken that could if and once implemented would prepare courts to resolve domain name disputes and to reach sound judgments. 1. Conditions to resolve domain names disputes in front of local courts According provision 4 J) of the Domain Dispute Resolution Policy for the ae, and UAEnic conformation that domain name disputes may now be settled in local courts using normal legal methods. Two conditions must be present in order for a trademark owner or holder (the plaintiff) to fill a claim in front of the local courts against the party that registered his trademark as a domain name (the defendant) and they are summarized below in two separate headings: A. The Domain name must be ending in AE and registered with UAEnic. The disputed domain name that the trademark owners asserts his right over it must be a country code domain name ending in ae, if the domain name is a generic Top Level Domain Name ( eg. com, .org, …) and not registered with UAEnic system, local courts will refuse to hear the claim and will demand from the injured party to refer back to one of ICANN’s approved dispute resolution providers. B. The parties must reside in the UEA. To fill a claim against a registrant of a domain name in bad faith with local courts, both parties (registrant and the trademark owner) must reside in the UAE, this means that they should have a legal presence or they should do business in the UAE. If one of the parties does not reside in the UAE, the claim will be denied accordingly and the court will refuse to issue its judgment since it does not have a jurisdiction over the disputed domain name. 2. Why Local courts are not prepared to solve domain name disputes? In my view I do not think that local courts at the time being in the United Arab Emirates are prepared to solve and settle domain name disputes for the following reasons:

1. Although the Dubai Government has issued e- commerce facilitation law No 2 of 2002 and electronic signature in criminal procedures and the trademark federal law no 37 of 1992, it failed to address in all these laws the conflict that arise between trademark and domain names, thus there is no legal base that the holder of the trademark can rely on if he/ she decide to fill a claim against a domain name registrant, but the trademark owner (plaintiff) may refer back to traditional provisions of trademark law and this proved to be inadequate and not reliable to resolve domain name disputes in many circumstances. 2. Many judges are not familiar with the basic technological concepts of the Internet, most of them are not computer illiterates and they do not know what are domain names and websites. . Understanding technology is very important in issuing a judgment concerning a domain name dispute. And this is illustrated in a recent case that has been filled and concluded in front of emirate’s criminal courts between Etisalat and Mr. Lee Ashurst the British national who hacked into Etisalat’s Internet system. 3- Parties will be reluctant to solve their domain name disputes in front of local courts since it will take time to resolve their domain name disputes and there is no procedure that can be followed to expedite the matter. 3. What ought to be done? To prepare local courts to domain name disputes and to reach sound judgments in the event that a claim has been raised against domain name bad faith registrant in front of local courts, I recommend the following to be taken into consideration: New provisions should be introduced into UAE trademark law that state clearly that registering a domain name identical or confusingly similar to a registered trademark constitute trademark infringement and unfair competition, also a provision indicating that compensation should be awarded to trademark owner if the bad intent of the registrant is proved and the trademark is severely harmed. 1- Judges must attend workshops and seminars to be aware of the technological and legal issues associated with the Internet and e- commerce, especially those related to domain names and the conflict that arise between it and trademarks. 2- Emirate university faculty of law should consider introducing new programs or courses that teach law students Internet and e- commerce laws. 3- Lawyers and academics specializing in IT and Internet laws must continuously right articles in law journals preferably in Arabic language to educate lawyers and the public about domain names and how disputes may be resolved either through Arbitration or local courts. 5- we must also train lawyers through workshops on how to fill and initiate domain name complaints or responses and represent clients in the administrative proceedings with WIPO under the ICANN Uniform Dispute Resolution Policy (UDRP). Conclusion While the UAE is ahead of Arab countries in issuing laws that regulate electronic commerce and the first country code Top Level Domain Name (ccTLD) authority in

the Middle East to receive the endorsement of the World Intellectual Property Organization (WIPO). Local courts in the UAE are not prepared to solve domain name disputes, it is important to amend laws and train and educate judges and lawyers to truly understand legal and technological implication of domain names, this in the end will solve domain name disputes more efficiently and will make the UAE truly eenabled environment. .