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19 Instruction from the Director General of the Red.es public business entity establishing the Regulations for the out-ofcourt conflict resolution procedure for domain names under the country code for Spain (.ES ). Preamble The Single Additional Provision of the National Plan for Domain Names under the country code for Spain (.es ) (hereafter the National Plan ), approved by Order ITC/1542/2005, dated 19 May, published in the Official State Gazette (BOE) dated 31 May 2005, and the Sixth Additional Provision, section 8 of Law 34/2002, dated 11 July, on Information Society and e-commerce Services, set forth that Red.es, as Assignment Authority for domain names under ".es", establish an out-of-court

20 conflict resolution system to resolve any disputes that may arise from the registration of a domain name under ".es" between its owner and a third party claiming legitimate interests in it. The recently approved National Plan makes it possible to register domain names under ".es" with greater flexibility and agility than the previous regulations, and therefore it is necessary to implement additional protection mechanisms that allow agile assignment of domain names under ".es", but without entailing a delay in the registration operations. The purpose of this Instruction is to establish the Regulations for the procedure for the out-of-court conflict resolution system for domain names under ".es". Fulfilment of these regulations, in accordance with section c) of the Single Additional Provision of the National Plan shall be obligatory for all ".es" domain name owners. The Eighteenth Additional Provision of Law 14/2000, dated 29 December, on Fiscal, Administrative and Social Order Measures, as drafted in article 70 Law 24/2001, dated 27 December, on the procedure for assigning internet domain names and addresses under the country code for Spain (.es), stipulates that, by decision of the Chairman of the Red.es public business entity, procedures shall be established for the assignment and other operations associated with registering internet domain names and addresses under the country code for Spain (.es) The Chairman of the Red.es public business entity, in accordance with section two, article 7 of Royal Decree 164/2002, dated 8 February, which approves the Red.es public business entity Statute, and in relation to section k), article 14 of said Royal Decree, has delegated to the Director General of the Red.es public business entity, in Decision dated 21 October 2005, the establishment of the assignment procedures and other operations associated with registering internet domain names and addresses under the country code for Spain (.es), with exception to the resolution of administrative appeals lodged against the decisions of the Director General made in the course of the administrative responsibilities attributed to him or her. In compliance with said delegation, the Red.es Director General has dictated this Instruction. This Instruction shall become effective on 8 November

21 Madrid, 7 November Ramón Palacio León. Director General, Red.es public business entity. 4

22 ANNEXE Regulations for the out-of-court conflict resolution procedure for domain names under the country code for Spain (".ES"). TITLE I General Provisions. Article 1. Scope of Application These Regulations (hereafter "the Regulations") apply to all ownership conflicts that may arise regarding the registration of ".es" domain names, without prejudice to the legal actions that the Parties may take. No procedure may be initiated in accordance with these Regulations when a cancellation or verification procedure for ".es" domain names is in progress, in accordance with the National Plan. The out-of-court conflict resolution procedure will be applicable to all ".es" domain name owners in accordance with section c) of the Single Additional Provision of the National Plan. Lodging an ownership conflict complaint signifies that the Plaintiff accepts all of the rules contained in these Regulations. Article 2. Definitions The following definitions apply to these Regulations: Red.es, Register or Assignment Authority: Red.es public business entity, attached to the Ministry of Industry, Tourism and Trade through the Secretariat of State for Telecommunications and the Information Society, which has been legally entrusted, in accordance with the Sixth Additional Provision of Law 11/1998, dated 24 April, on General Telecommunications, with the management of the Register of Internet Domain Names under the country code for Spain, ".es". Registering Agent: Individual or legal entity duly accredited by Red.es to act as intermediary in ".es" domain name assignment and management procedures. 5

23 Registration Agreement: The agreement between the Registering Agent or the Register, and the domain name owner. Defendant: The beneficiary of the registration of a domain name against which a claim has been lodged in accordance with the Regulations. Plaintiff: Individual or an entity with or without legal status that lodges a complaint regarding the registration of an ".es" domain name. Prior Rights: 1) Names of entities legally registered in Spain, denominations or indications of origin, trade names or trademarks or other industrial property rights protected in Spain. 2) Persons' registered names or widely-known pseudonyms, which identify professionally, among others, intellectual creators, politicians and showbusiness or sport figures. 3) Official or generally recognisable names of Spanish public administrations or public entities. Provider: The service Provider for out-of-court conflict resolution accredited by Red.es. Expert: The specialist in out-of-court conflict resolution, preferably in the area of domain names, with certified knowledge of Spanish law, named by the Provider, in accordance with the terms established in these Regulations, to resolve a complaint related to the registration of an ".es" domain name. Speculative or Abusive Domain Name Registration: Among other cases, when the following requirements are met: 1) The domain name is identical to or similar, to the point of causing confusion with another term to which the Plaintiff claims to possess Prior Rights; and 2) The Defendant holds no right or legitimate interest in the domain name; and 3) The domain name has already registered or used in bad faith. 6

24 Bad faith in domain name registration or usage, will be proven when: 1) The Defendant has registered or acquired the domain name for the primary purpose of selling, renting or transferring, for any reason, the registration of the domain name to the Plaintiff who holds the Prior Rights or to a competitor of the Plaintiff, for a proven value that exceeds the documented cost related directly to the domain name; or 2) The Defendant has registered the domain name to prevent the holder of the Prior Rights from using exercising said rights through the domain name, as long as the Defendant has carried out activity of that type; or 3) The Defendant has registered the domain name for the primary purpose of disrupting the commercial activity of a competitor; or 4) The Defendant, by using the domain name, has deliberately attempted to attract, for the purpose of profit, internet users to his or her web page or to any other, creating possible confusion with the identity of the Plaintiff in relation to the source, sponsorship, affiliation or promotion of the web page or as regards a product or service included on the web page; or 5) The Defendant has carried out actions similar to the above in detriment to the Plaintiff. Article 3. Providers of Out-of-court Conflict Resolution Services a) The procedure regulated by these Regulations shall be substantiated before an out-of-court conflict resolution service Provider accredited by Red.es and selected by the Plaintiff. For this purpose, Red.es shall establish an accreditation procedure based on proportionate, objective, transparent and non-discriminatory conditions that guarantee the impartiality and independence of the service Provider, in addition to the experience and qualifications of the Provider in the field of out-of-court conflict resolution. Article 4. List of Experts a) The Providers shall maintain and publish an updated list of Experts, with their professional qualifications, made available to the public on their web pages. 7

25 b) The Providers shall modify the list of Experts based on the needs of the service. Article 5. Impartiality and Independence The Experts shall be impartial and independent. Before accepting their appointment, Experts must notify the Provider of any circumstances that could give rise to reasonable doubt about their impartiality or independence. If at any time during the procedure new circumstance arise that could create reasonable doubt about the impartiality or independence of an Expert, said Expert shall immediately notify the Provider of these circumstances, in which case the Provider, after analysing the circumstances, may replace the Expert appointed initially. Article 6. Substitution of Experts a) The Provider shall replace the Expert when, following the appointment, it is determined that the there are circumstances that could give reasonable doubt as to the Expert's impartiality and independence. b) The party wishing to replace the Expert based on lack of impartiality and independence must submit the challenge within five calendar days of the appointment. The Provider, within five calendar days, shall make a decision on the challenger submitted, unless the Expert refuses the appointment on his or her own initiative. c) The Provider shall replace the Expert when both parties have requested the replacement in writing within five calendar days of the appointment. Article 7. Notification a) In accordance with article 15, the Provider shall notify the Defendant of the claim by means of all of the following postal, or telefax addresses: i) the addresses for the owner and administrative contact person for the domain name that gives rise to the conflict, as indicated in the Register database, as well as ii) the addresses submitted to the Provider by the Plaintiff and, as appropriate, 8

26 iii) the address submitted to the Provider by the Defendant to receive notifications. b) Al other notifications related to the procedure shall be delivered, whenever possible, by electronic means. c) Either party may update their contact information by notifying the Provider and the Register of the new data, following the procedures established in each case for that purpose. d) As established in these Regulations or at the discretion of the Expert, the notifications indicated in these Regulations shall be considered made: i) if the transmitted by electronic copy or telefax, on the date indicated by the transmission confirmation; or ii) if delivered by post, on the date indicated on the postal receipt; or iii) if sent by , on the date the notification was sent, as long as the transmission date is verifiable. e) Unless otherwise justifiably established by the Expert, all time periods indicated in these Regulations shall begin on the earliest date on which the notification was made in accordance with article 7 d). f) The Provider and the Expert, from his or her appointment, may, in a justifiable manner proportionately extend the periods established in these Regulations upon request from the Parties or on their own initiative. g) Following notification to the Defendant of the Claim, a copy of all communications from the Parties, the Expert or the Provider shall be provided to the remaining parties involved in the procedure indicated in this section. h) The party who sends any communication shall be responsible for providing documentary proof of the transmission and/or of the delivery circumstances. This documentary proof may be reviewed by the interested parties. i) If the Party who sent the communication receives notification that said communication was not successfully delivered to the recipient, the sending Party shall immediately notify the Expert or, if not appointed, the Provider of the circumstances under which the communication was made. 9

27 Article 8. Procedure Language a) The language for the procedure governed by these Regulations is Spanish. However, the Expert, for justifiable reasons, may agree to process the procedure in another language, if the circumstances of the procedure so require and the Parties are in agreement. b) The Expert may require that documents submitted in languages other than that of the procedure be accompanied by a translation, in whole or in part, into the language of the procedure. Article 9. Procedure Suspension If either of the Parties requests that the Expert suspend the procedure, the Expert shall make a motivated decision on the request and shall, if appropriate, proceed to suspend it for a proportionate period of time. The procedure may be resumed, if necessary, when so decided by the Expert. Article 10. Unnecessary or impossible continuation of the procedure If the Parties reach an agreement on the conflict covered by the procedure before the Expert reaches a decision, the latter may consider the procedure terminated. If the Expert, or of the Provider if no Expert has been appointed, considers that continuation of the procedure is unnecessary or impossible for any reason before a decision has been issued, the Expert, or the Provider, may consider the procedure terminated, unless one of the Parties, within five calendar days and with justification, opposes the termination of the procedure. Article 11. Effectiveness of the judicial procedures a) The substantiation of the out-of-court conflict resolution procedure regulated by these Regulations shall not prevent the Parties, at any time during the procedure, from approaching the jurisdiction responsible for said conflict resolution. In this case, the Expert shall be authorised to decide whether to suspend or terminate the procedure without issuing a decision or to continue the procedure and issue a decision. b) If one of the Parties initiates a judicial procedure related to the same domain name after starting an out-of-court conflict resolution procedure for said domain name, the Party must immediately notify the Register, the Expert and, if no Expert has been appointed, the Provider of the initiation of said procedure. 10

28 c) In any case, the decision made by the jurisdictional entity that deals with the conflict dispute subject to the out-of-court resolution procedure covered by these Regulations shall prevail. Article 12. Charges and Fees a) The Plaintiff shall be responsible for paying the charges and fees in the out-of-court conflict resolution procedure for domain names under ".es" established in the Provider's charges and fees scale. b) When the Plaintiff withdraws the claim, without justification, prior to notifying the Defendant of the claim, the Provider shall not be required to reimburse the Plaintiff for the charges and fees already paid. c) The Provider shall take no action prior to receiving the charges and fees indicated in section a) from the Plaintiff. d) If the Provider does not receive the charges and fees indicated in section a) within 10 calendar days of receiving the Claim, the Provider may consider that the Plaintiff has withdrawn the Claim and terminate the procedure. e) The Plaintiff shall pay for the actions that, exceptionally, must be taken by the Expert, such as audiences, hearings, document examination, etc. TITLE II Details of the Procedure Article 13. The Claim a) Any individual or entity with or without legal statutes may initiate an outof-court conflict resolution procedure by submitting three printed and/or electronic copies of the Claim to the Provider and one copy to Red.es. b) The Claim must include the following minimum information: i) the domain name(s) included in the Claim; ii) the name, postal and addresses, and the telephone and telefax numbers of the Plaintiff, and, when appropriate, of the representative authorised by the Plaintiff to provide assistance in the procedure; iii) The method selected for receiving communications, including the specific contact person and the different addresses at which communications 11

29 and documents are to be received, both in electronic format and in other formats. iv) The name of the Defendant and all information (including any postal and addresses, as well as telephone and telefax numbers) known by the Plaintiff to contact the Defendant or the Defendant's representative. Information for this purpose may include data from relations prior to the Claim that make it possible to contact the Defendant or the Defendant's representative and to deliver the Claim in accordance with article 15; v) When appropriate, the Defendant's Registering Agent at the time the Claim is lodged; vi) Description of the Prior Rights on which the Plaintiff bases the Claim, providing, when available, copies of the titles accrediting the Prior Right or any other proof that certifies it; vii) allegation (not to exceed 5,000 words) of the reasons why the domain name registration is speculative or abusive, providing any type of proof that accredits the Speculative or Abusive Domain Name Registration, and in particular: 1) The reasons why the domain name is identical to or similar, to the point of causing confusion with another term to which the Plaintiff claims to possess Prior Rights; and 2) The reasons why the Defendant should not be considered to have rights to or legitimate interest in the domain name or names included in the claim; and 3) The reasons why the domain name should be considered to have been registered or is being used in bad faith. viii) The action demanded; that is, or the transfer of the domain name to the Plaintiff or its cancellation; ix) Identification of any legal verification or cancellation procedure, or of any other type, that has been initiated or completed regarding the domain name included in the Claim; c) Lodging the Claim entails, as regards any appeal to the decision made in the procedure, that the Plaintiff waivers any jurisdiction to which he or she may have a right, and express acceptance of the jurisdiction of the Courts of the City of Madrid. 12

30 Likewise, lodging the Claim entails the Plaintiff's waiver of any legal or other action against Red.es, the Registering Agent, the Provider or the Expert, as well as their directors, civil servants, employees and agents, except in the case of grievous or unlawful infraction. d) The Plaintiff shall include a declaration in the Claim indicating that the information contained therein is, to the best of his or her knowledge and understanding, complete and exact, and that the Claim has not been lodged abusively. e) The Claim may contain demands on more than one domain name, as long as the domain names are owned by the same Defendant and the Plaintiff claims to hold Prior Rights to all of them. f) If there is more than one conflict between the Plaintiff and the Defendant processed by the procedure regulated in these Regulations, the Parties may request that said conflicts be assigned to a single Expert. This request shall be submitted to the first Expert appointed, unless the Parties agree to designate another Expert. g) Upon request by the Provider, Red.es shall verify the contact information on the Defendant given by the Provider, notifying the Provider of the correct data available in the Register database. Article 14. Blocking the Domain Name a) Once the claim has been received and the Provider has verified that there is good cause for the claim of Registration or Use of the Domain Name in bad faith related to the Prior Rights indicated in article 13, the Provider shall immediately request that Red.es block the domain name included in the claim. b) Once the request to block the domain name has been received, Red.es shall immediately block the domain name(s) included in the Claim for the duration of the procedure. c) Blocking the domain name shall make it impossible to: 1) transfer ownership of the domain name to a third party. 2) cancel the domain name in the Register 3) modify the registration data. Under no circumstances shall the block prevent the Defendant from renewing the domain name, nor from modifying the renovation method. 13

31 d) Red.es shall immediately notify the Provider of the block for it to continue with the procedure. e) Suspension of the procedure does not mean the suspension of the block, unless otherwise indicated by the Expert or, possibly, a legal body. f) Termination of the procedure shall lead to the suspension of the block, unless otherwise indicated by a legal body. Article 15. Notifying the Defendant of the Claim a) For all effects and purposes, the date of initiation of the procedure is the date on which the Defendant is notified of the Claim. b) Once notification of the block has been received, the Provider shall deliver the Claim to the Defendant as indicated in article 7, within five calendar days of receiving effective payment of the charges and fees that the Plaintiff must pay in accordance with article 12. The Provider, when appropriate, shall send a copy of the Claim to the Defendant's Registering Agent. c) If the Provider considers that the Claim includes rectifiable defects, both Parties shall be notified, allowing the Plaintiff five calendar days to make the rectification. Following that period, if the Plaintiff has not submitted the documents necessary to rectify the defects in the Claim, the Plaintiff shall be considered to have dropped the Claim, though retaining the right to lodge a new Claim. The Provider shall notify the Parties, Red.es, and, when appropriate, the Registering Agent, should the Plaintiff desist. If, in the opinion of the Provider, the documentation submitted by the Plaintiff is insufficient to rectify the defects, the Provider shall terminate the procedure, and the Plaintiff shall retain the right to lodge a new Claim. Article 16. Claim Response Document a) Within twenty calendar days of the date on which the procedure begins, the Defendant shall submit a written response, in printed and/or electronic form (except the annexes that are not available in that format), to the Provider and to the Plaintiff simultaneously. b) The Response must include the following minimum information: i) Specific response to the declarations and allegations indicated in the Claim, including all of the reasons why the Defendant considers that he or she 14

32 should retain ownership of the domain name in the conflict (this part of the written response must not exceed 5,000 words); ii) The name, postal and addresses, and the telephone and telefax numbers of the Defendant, and, when appropriate, of the representative authorised by the Defendant to provide assistance in the procedure; iii) The method selected for receiving communications, including the specific contact person and the different addresses at which communications and documents are to be received, both in electronic format and in other formats. iv) Identification of any legal procedure, or of any other type, which has been started or completed regarding the domain name included in the Claim; v) Any type of documentary proof supporting the written response, especially that which certifies that the Domain Name Registration was not speculative or abusive on the part of the Defendant or that refutes the Prior Rights claimed by the Plaintiff. d) The Defendant shall include a declaration in the written response indicating that the information contained therein is, to the best of his or her knowledge and understanding, complete and exact, and that the written response has not been lodged abusively. e) If the Defendant does not submit the written response, the Expert shall resolve the conflict based on the Claim. Article 17. Appointment of Expert and Resolution Deadline a) The Provider shall appoint an Expert from among those indicated on its Experts List, taking into account availability and the knowledge required to resolve the procedure. b) The appointment shall be made at the offices of the Provider within five calendar days of receipt of the written response to the Claim. c) Once the Expert has been named, the Provider shall deliver the file to him or her and provide the name and contact address of the Expert to the Parties and to Red.es. 15

33 Article 18. General Powers of the Expert a) The Expert shall manage the procedure as deemed appropriate for its processing in accordance with the Regulations. The Expert shall guarantee equal treatment for both Parties. b) The Expert shall decide on the admission of evidence. c) The Expert may request, when considered pertinent, that the Parties provide clarifications or additional documents to the Claim or the Written Response. d) The Expert shall resolve the admission of clarifications or additional documents that the Parties are interested in submitting at any stage of the procedure. The Expert shall also hold any other functions and powers attributed to him or her by these Regulations. Article 19. Hearings They Parties may propose that hearings be held with attendance in person or by videoconference or audioconference. The Expert shall make the determination regarding these hearings. In any case, the Expert shall have the authority to summons the Parties to a hearing, with attendance in person or by videoconference. Article 20. Default a) The Expert may continue and resolve the procedure when either of the Parties fails to comply with the deadlines established in these Regulations. b) The Expert will determine, justifiably and proportionately, what effect any breach of obligations will have in respect of each Party and in accordance with these Regulations. Article 21. Resolution a) The Expert shall resolve the Claim, justifiably, taking into account the declarations made and the documents submitted by the Parties. b) The resolution shall be consistent with the aim of the Claim; it may not include decisions on questions beyond the scope of the claim, and, in all cases, it must respect the applicable provisions of the National Plan for Domain Names under ".es". 16

34 c) The Expert must submit three signed copies and the electronic version of the decision to the Provider within fifteen calendar days of receiving the written response. d) Once the Resolution has been issued by the Expert, the Plaintiff may not begin a new procedure based on these Regulations against the Defendant for the same purpose, unless evidence appears of essential value to the resolution that could not be known to the Plaintiff at the time the Claim was lodged. Article 22. Notification of the Decision to the Parties a) The Provider shall send one signed copy of the decision to the Parties and an electronic copy to Red.es, to the Parties and, when appropriate, to the Registering Agents of each of them. b) Red.es shall publish the Expert's resolution on the Register's public-access internet page. Article 23. Execution of the Decision a) Red.es shall, except in the case indicated in paragraph b) of this article, execute the decision issued by the Expert. If the Expert accepts the Claim, Red.es shall transfer the domain name to the Plaintiff, or cancel the domain name, as appropriate, once fifteen calendar days have elapsed from the date the decision was notified electronically to the Parties and to Red.es. b) If, within fifteen calendar days of the notification of the decision in electronic format, either of the Parties provides Red.es with a document certifying that legal actions have been initiated before the corresponding court, Red.es shall suspend the execution of the decision until it has received a document certifying the conclusion of the legal action, unless otherwise determined by the judicial body. Article 24. Release from Liability TITLE III Final Provisions The Provider and the Expert shall not be held responsible by the Parties, except in cases of grievous or unlawful infraction, for the actions carried out in accordance with these Regulations. 17