The registry for Latvian domain names (‘.lv’) allows brand owners to file against registrants through a policy similar to the Uniform Domain Name Dispute Resolution Policy (UDRP). The registry has recently nominated the World Intellectual Property Organisation (WIPO) to administer these proceedings. The policy, and its administration by WIPO, has brought the ‘.lv’ extension in line with many other ccTLDs who have also adopted UDRP-inspired dispute policies.
There are some subtle, but crucial, differences between the UDRP and the Latvian policy (LVDRP).
One of the benefits of the UDRP is that it largely reflects the near-borderless nature of the Internet. Complainants can rely on registered or unregistered trademarks in any jurisdiction to satisfy the first requirement of having ‘rights’ in a mark.
However, some ccTLDs who have adopted policies similar to the UDRP narrow the scope to their respective jurisdiction. The ‘.lv’ policy is one such example. A complainant must show that their rights exist in Latvia to pass the first element of the LVDRP. As Latvia joined the European Union in 2004, complainants may rely on trademarks registered with the EUIPO.
While the jurisdictional scope of a complainant’s rights has been narrowed by the LVDRP, the scope for the type of ‘right’ has been widened. The UDRP requires trademark rights specifically, whereas a complainant can rely on geographical indicators and company names under the LVDPR.
Geographical indicators that exist at the EU level, as with trademarks, can be relied upon by complainants. However, the wording of the LVDRP requires company names to have been registered on the Latvian Commercial Register specifically.
One slight cause for concern, however, is the asymmetry between the jurisdictional scope for complainants under the LVDRP and that of the registration policy for ‘.lv’ domain names. Registrants may register ‘.lv’ domain names even if they are not based in Latvia. It is likely, therefore, that WIPO will oversee disputes under the LVDRP between two non-Latvian parties, yet the need for rights within Latvia will nevertheless apply to complainants.
One of the most controversial words in the UDRP has been the “and” in the third element which pertains to ‘bad faith’. Specifically, under the UDRP a complainant must prove the registrant’s bad faith upon registration of the domain name, and in their current use of the domain name.
The LVDRP has followed many other ccTLD variations: a complainant is required to prove only bad faith registration or bad faith use.
While this change seems small, its effect is profound. The LVDRP can be applied to cases where a registrant initially registered the domain name without bad faith intentions, only to use it in bad faith later down the line. This is not the case under the UDRP, and is the cause of many denials.
The above represents the only substantive difference between the UDRP and the LVDRP.
However, brand owners seeking to file a complaint with WIPO should also be aware of the procedural differences under the LVDRP. Importantly, the language of proceedings shall be Latvian by default. The good news is that a caveat to this rule is explicitly stated: where both parties are based outside of Latvia, the complainant may file its complaint in English. Section 11 of the LVDRP Rules specifically mentions English, rather than ‘a language other than Latvian’. It remains to be seen whether complainants can request proceedings to be in a language other than Latvian or English, but a strict reading of the Rules would suggest that this is not possible.
The mutual jurisdiction of LVDRP disputes shall be the courts of Latvia. This type of change from the mutual jurisdiction rules of the UDRP is common among ccTLD variants. Again, however, this will present an interesting case if a LVDRP decision is challenged by either party where both parties are based outside of Latvia.
Finally, there appears to be no availability for a three-member panel to decide a LVDRP case. This is reflected in the wording of the LVDRP Rules and WIPO Supplemental Rules which use the singular term ‘expert’ rather than ‘panel’. This also means that a complainant will pay a flat filing fee of EUR 1,400 for any disputes involving less than five domain names, whereas under the UDRP a filing fee may vary based on whether they request a single-member or three-member panel.
WIPO continues to expand its impressive list of available ccTLD dispute resolution policies. The ‘.lv’ extension joins others such as ‘.ad’ and ‘.cv’ as recent additions. The LVDRP takes inspiration from the UDRP, but makes adjustments to reflect the Latvian jurisdiction. This presents an interesting asymmetry with the general availability of ‘.lv’ domain names to those outside of Latvia. We look forward to the first ‘.lv’ decisions being rendered through WIPO.
James Taylor
Senior Legal Adviser
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