More than a year on from the launch of .eu, 'the domain name for Europe', many brand owners have successfully registered their key brands. Others, however, were either not aware of the launch or were poorly advised and their applications were unsuccessful, losing out to unscrupulous third parties or competitors.

Aggrieved parties have the option of using the specifically-designed .eu alternative dispute resolution (ADR) procedure, which has a unique set of operating rules. Since 1 January, 2007, it is the only such ADR procedure that allows wholly electronic filing; the first all-electronic filing of a .eu complaint was submitted by Lovells on 10 April, 2007.

Parties to a .eu ADR proceeding are able to submit all the necessary documentation electronically, using an advanced electronic signature based on a qualified certificate and created by a secure signature creation device (SSCD). European Directive 1999/93/EC of 13 December, 1999, sets out a Community framework for electronic signatures and lays down stringent requirements in this regard, particularly in relation to advanced electronic signatures created by a SSCD.

Regulation (EC) No. 874/2004 sets out the public policy rules concerning the implementation and functions of the .eu top-level domain, including
the revocation and settlement of conflicts, modelled on the uniform domain name dispute resolution policy (UDRP) and rules.

The UDRP, introduced by the Internet Corporation for Assigned Names & Numbers in 1999, is designed to serve as a simple and cost-effective remedy for clear cases of cybersquatting. It applies to certain generic top-level domains such as .com and .net and has also been adopted by various countries to apply to their country code top-level domains. The UDRP has proved popular, with 28 countries adopting it in its classical form, while another 20 have adopted a variation of the UDRP.

The .eu ADR rules provide the complainant must prove that:

- the domain name is identical or confusingly similar to a name in respect of which a right is recognised or established by the national law of a member state and/or Community law; and either

- the respondent has no rights or legitimate interests in respect of the domain name; or

- the domain name has been registered or is being used in bad faith.

Although these conditions appear to be identical to those of the classical UDRP, the .eu ADR rules process has subtle yet significant differences. Firstly, the .eu ADR rules only require a complainant to prove the first element and then either of the second two, whereas the UDRP provides that a complainant has to prove all three of its elements. This could have significant ramifications as a .eu domain name registrant could have his registration revoked even in the absence of any kind of bad faith if he has no demonstrable rights or legitimate interests in the name.

Thus, the element that is arguably the critical element in the UDRP, is actually optional in the .eu ADR rules.

Secondly, the elements themselves are more widely drafted: the UDRP requires a complainant to prove that a disputed domain name is identical or confusingly similar to its trademark or service mark. The scope was deliberately restricted to trademarks or service marks on the basis that the international framework for certain other rights – such as trade names, personal names and geographical indications – is not as well developed, with national approaches differing significantly.

However the .eu ADR rules cover not only trade or service marks but names in respect of which right is recognised or established by the national law of a member state and/or community law. The breadth of recognised rights across 25 member states will give rise to considerable scope for complainants but also for respondents.

In addition, the UDRP provides that the complainant must prove both registration and bad faith, whereas the .eu ADR rules provide for registration or use in bad faith. This will place less of a burden on complainants and should avoid them having to prove passive bad faith in the event that the domain name was registered in bad faith but is not being used.

This second means of protection for intellectual property (IP) rights owners is proving popular, with more than 750 proceedings having been brought before the Czech Arbitration Court, the provider for these disputes, and some 500 decisions in a little over a year.

In proceedings against registrants themselves the success rate for complainants is just over 50%. This is a considerably lower success rate than with the classic UDRP, where the success rate for complainants is in the realm of 80%.

It is perhaps an indication of the difficulties complainants encounter due to the complex nature of the eligible rights under the .eu ADR rules. It will be interesting to see how the upcoming launch of .asia copes with these same issues.