On September 24th 2019, the Administrative Regulation for the National Plan for “.ve” Domain Names was issued by the National Telecommunications Commission (CONATEL).
This is the first internal regulation regarding domain names, which had been previously limited to adopting regulations from the internet corporation for assigned names and numbers (ICANN), including their Uniform Domain Name Dispute Resolution Policy.
In addition to a glossary of terminology in which the NIC.ve is defined as the “Center of network information of the National Telecommunications Commission for the Bolivarian Republic of Venezuela”, this administrative regulation establishes the terms and conditions for the registration, management, renewal, transfer and use of .ve domain names, and is also applicable to all extensions approved by CONATEL such as “gob.ve”, “mil.ve” or “edu.ve”.
The most prominent aspect of this regulation is the establishment of the principle of “first to come, first to serve” as a general rule for the registration of domain names in Venezuela. Article 04 points out that the review of registration requests shall be transparent and non-discriminatory, in chronological order as received as long as “no right acquired by a third party over said combination of characters is harmed”.
Consequently, according to said regulations, the principle of “first to come, first to serve” which has been an international standard ruling the registration of domain names. Notwithstanding the above, it does not clarify which aspects can be considered as harmful to rights acquired by a third party over said combination of characters, nor does it express the priority of a trademark right. For example, it is still dubious whether likelihood of confusion shall be considered by CONATEL as grounds for refusal of registration, which could be alarming, or if contrarily, as has been uniform in comparative law, only the name being identical to a previously registered domain name is grounds for refusal of registration.
The regulation also establishes that responsibility for use or lack of use of a domain name falls solely on its holder but also on its administrative contact, which shall have special relevance for cases in which an action can fall under criminal acts, such as the ones established in the special law for computer crimes.
This new regulation establishes that any information provided for the purposes of obtaining a registration of a domain name, shall be considered a sworn statement, and as such, shall be accurate, exact, complete and updated. This aspect has special relevance when consideration is made that providing false, confusing and incomplete information for the sole purpose of registering a domain name may fall under perjury or any other criminal act that entails providing false testimony to the public officer.
One of the obligations that the regulation imposed on the applicant of a domain name at the time of registration is to ensure that they shall guarantee that the use shall be for legal purposes solely without affecting or interfering third party rights, any laws in addition to informing CONATEL of any fact that may be in violation of this administrative regulation as well as keeping the information provided for the domain name updated.
The regulation establishes a new registration procedure providing for a prior step for the registration consisting of a “reservation” of the domain name in order to verify its availability. This reservation shall be valid for whomever made it for a maximum period of five business days, in which payment of official fees shall be made at the rate established and linking it to the reserved domain through the NIC.ve portal, after which the registration shall be effectively registered. Should the reservation period expire without a registration being completed, then the domain name shall be released.
Notwithstanding, the new procedure lacks mechanisms for publicity for the registration of a new domain name, nor opposition or cancellation, such as the ones established in laws in Chile for example.
The validity of the registration of domain names is for one calendar year, and shall be renewed for identical periods provided the payment of appropriate official fees is made.
Another novel aspect of this administrative regulation is the establishment of grounds for refusal of registration of a domain name. Accordingly, registration of terms or expressions that may be offensive, against morality, good customs and public policy or laws shall be prohibited.
It is unknown which standards shall be applied by CONATEL in order to determine whether a domain name falls under the above-mentioned criteria and whether they shall be applied prior to. In any event, it appears to be at least a wide range for the application of subjective criteria by public officers which shall entail limitations on the freedom of speech guaranteed by the constitution.
Also excluded from registration are domain names that reference Venezuelan official government issues or projects, without having the proper accreditation for it. Beyond the doubts stemming from the discretionary application of this criteria, as we have noted, there is also the concern regarding the fate of a previously granted domain name prior to the establishment of an official project that matches this name and whether CONATEL may have the power to cancel this registration. It appears that the general application of “first to come, first to serve” established in the regulation shall prohibit this power, but only time shall tell.
Regarding CONATEL’s power to cancel a domain name, there are three main options:
When this entity has established, through and administrative process, that a domain name is harmful, discriminatory, contrary to laws or public policy, morality or good customs.
Due to improper use of domains and sub-domains, in order to commit fraud or to impersonate government entities, organizations, national, state or municipal dependencies, international organizations, individuals or corporate entities “following the regulations established by the World Intellectual Property Organization (WIPO)”
By providing false information or data to the NIC.ve platform.
It is worth pointing out the provision of an administrative procedure in literal a), since this regulation lacks any guidelines regarding timeframes or effective mechanisms for the proper exercise of rights, leaving also a door open for the application of discretional criteria by public officers.
With regard to the inclusion of regulations for the resolution of disputes in subparagraph b), we must then understand that any dispute must be resolved through the uniform policy for the resolution of ICANN domain name conflicts, but using the WIPO arbitration and mediation center for the application of these regulations, as well as its supplementary rules.
This observation derives from the final fourth provision of said regulation, which establishes that until CONATEL does not establish the general conditions for applying alternative mechanisms for conflict resolution between the owner of a domain and a third party, they must be resolved according to the uniform policy for resolving ICANN domain name conflicts.
In conclusion, it is a first mechanism for regulating domain names in Venezuela, and may well be the most important since 2000 when Venezuela adopted the ICANN regulations for dispute resolution. Perhaps the most controversial aspect of this regulation is the discretionary powers that fall on CONATEL officials to determine what is against morals, good customs or public policy, putting at risk, among other rights, the of freedom of expression.