03 March 2003

Johan Vandendriessche

1. Introduction

The abusive registration of domain names, also known as cyber squatting, has already caused a great deal of commotion.

With reference to the 1883 Paris Convention on the Protection of Industrial Property, the government decided to submit a draft law to the Belgian Parliament on 26 January 2001 to curtail this phenomenon[1]. The draft law does not only aim to protect companies, but individuals as well[2].

On 21 February 2003, the draft law passed the first hurdle: it was accepted in the Parliamentary Sub-commission for Economic Affairs. On 27th February 2003 it was accepted by the House of Representatives and now only needs approval from the Senate.

2. The notification procedure ex Directive 98/34/EC[3]

On 22 December 2000, the Belgian Government notified the European Commission, according to Directive 98/34/EC, of the contents of the draft law.

The European Commission submitted the draft law to a close scrutiny and came to the conclusion that it contained rules, which would hamper the free movement of services in the internal market.

The main criticism of the European Commission concerned the applicability of the envisaged law on involved entities, regardless of their domicile or registered office.

To prevent the reception of a reasoned opinion and consequently an infringement procedure on the basis of article 226 of the EU Treaty, the Belgian Government decided to suspend the Parliamentary procedure in order to amend the draft law.

It took until late 2002 before the Parliamentary procedure resumed.

3. Protection of domain names

3.1. The abusive registration of a domain name (“cybersquatting”)

The draft law considers the registration of a domain to be abusive if that domain name is (a) identical to or confusingly similar to (i) a trade mark, (ii) a geographical destination, (iii) an indication of origin, (iv) a trade name, (v) an original creation, (vi) a company or association’s name, (vii) the family name of a natural person or (viii) a geographical entity, in which a third party has rights, (b) is registered without any right or legitimate interest and (c) with the purpose to harm a third party or to obtain an illegal advantage. (article 4)

3.2. Sanctions

The draft law confers jurisdiction to the Belgian courts for all registrations of domain names by persons and companies with domicile in Belgium and all registrations under the .BE ccTLD. Foreign registrants of such “Belgian” domain names are automatically submitted to the jurisdiction of the Belgian courts (article 4)[4].

Only persons proving sufficient legitimate interest and a (proprietary) right to any of the abovementioned distinctive signs are entitled to file a claim. It was decided that proof of sufficient interest was not sufficient as such, but that a right to the relevant distinctive sign was also necessary to restrict the access to this procedure. It is not clear why both a legitimate interest and a right to a distinctive sign must be proven. One would rather think that a right to a distinctive sign would present sufficient legitimate interest to file a claim to preserve that distinctive sign against cyber squatting. The preparatory documents do not reveal of what this legitimate interest should consist, on top of the right to the distinctive sign.

The proceedings are conducted as in summary proceedings, but the judge decides on the merits. He may order the cancellation or the transfer of the domain name. Furthermore, the judge may order the publication of his judgment in the press or by other means if this contributes to the cancellation of the registration or the limitation of the effects thereof.

The judge does not rule on free speech matters. With case law in France concerning Danone and Greenpeace[5], this rule must be kept in mind.

4. Superfluous legislation?

At this moment, Belgium has an extremely efficient alternative dispute resolution (ADR) mechanism concerning domain name disputes[6]. A registrant of .BE domain names must accept the general terms and conditions of DNS.be, a non-profit organisation managing the Belgian ccTLD. The registrant therewith accepts an ADR mechanism: an arbiter will be appointed to rule on any dispute. The abusive nature of a registration of a domain name is determined by the very same conditions as the draft law.

The efficiency of the ADR mechanism is clearly proven by the diminishing number of cyber squatting disputes.

Furthermore the general terms and conditions do not exclude the possibility of bringing a domain name dispute before a regular court. This is a decision which is sometimes taken if the claimant fears he will not be able to prove he meets all the conditions. It is questionable if identical legislation will make any difference.

A possible argument concerning the cost of the arbitration may probably also not be retained. It may be true that the cost of arbitration is higher than the cost of the court. Lawyers’ fees may however quickly tilt the balance in favour of arbitration.

The Belgian government’s arguments as to why this legislation is necessary fail to convince[7].

First of all, the government wishes to present the victims of cyber squatting a choice of arms, a choice of several possible procedures to remedy the situation. A choice of procedures can indeed improve the legal position of victims of cyber squatting, but it is questionable if different procedures with the same conditions offer any added value.

The government also defends its position by stating that that there are some difficulties in applying the Trade Practices Act on cyber squatters, because it is only applicable to sellers, which will not always be the case with cyber squatters. Examination of Belgian case law reveals that Courts find little trouble in qualifying cyber squatters as sellers in the sense of the Trade Practices Act[8]. However, it is true that not all cyber squatters can be qualified as sellers.

The argument that the judge will be competent to order the transfer of the domain name as most appropriate remedy also fails to convince: the ADR mechanism also allows this.

As a conclusion, it can be noted that this draft law will indeed offer the victim of cyber squatting the choice between ADR and court proceedings. It remains however unclear what advantage the victim will have with an identical ADR and court procedure. The real choice for the victims of cyber squatting therefore still remains the choice between the protection of the general terms and conditions of DNS.be or the protection of the legislation of the distinctive signs concerned in the cyber squatting dispute.


[1] Preparatory Parliamentary Document 1069/1, 3-5.
[2] The Administrative Court of Appeal – Legislation Department correctly observes that cyber squatting may also occur in relation to physical persons: Preparatory Parliamentary Document 1069/1, 7 and 17.
[3] Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations.
Preparatory Parliamentary Document 1069/2, 2-3 and Preparatory Parliamentary Document 1069/5, 10-11.
[4] Compare article 4 with the original version contained in Preparatory Parliamentary Document 1069/1. The competence of the Court was restricted due to the remarks of the European Commission.
[5] Tribunal de Grande Instance de Paris, Ordonnance de référé du 14 mai 2001 - Société Compagnie Gervais Danone / Société Le Réseau Voltaire, Société Gandi, Valentin L. (exerçant sous l'enseigne "Altern B”, <http://www.legalis.net>; Tribunal de Grande Instance de Paris, Jugement du 4 juillet 2001 - Sté Compagnie Gervais Danone et Sté Groupe Danone / Olivier M., SA 7 Ways, Sté ELB Multimédia, association "Le Réseau Voltaire Pour la Liberté d’expression", Sté Gandi et Valentin L. (exerçant sous le nom commercial "Altern B"), <http://www.legalis.net>; Tribunal de Grande Instance de Paris, Ordonnance de référé du 8 juillet 2002 - Société Esso / Association Greenpeace France, Société Internet FR, <http://www.legalis.net>.
[6] The general terms and conditions of DNS.BE contain an ADR-mechanism. Please see <http://www.dns.be>.
[7] Preparatory Parliamentary Document 1069/5, 3-8.
[8] Court of Appeals of Brussels 1 April 1998, <http://www.droit-technologie.org>; Commercial Court of Brussels 27 November 1997, <http://www.droit-technologie.org>;