Swico has adopted this Code of Conduct for Domain Names (hereinafter “CCD”) to establish technology-appropriate principles of conduct for Swiss registrars in dealing with unauthorized registrations and uses of domain names, to establish these principles as an industry standard, to strengthen legal certainty, and to facilitate the process for affected parties in taking action against the holders of such domain names.
With the notice-and-notice and notice-and-takedown procedures set forth in the CCD, Swico complies with the applicable provisions of Swiss law. At the same time, it addresses legal ambiguities by providing concrete recommendations for action in response to third-party complaints regarding the unauthorized registration and use of domain names by customers.
Providers of domain name services play an important role as intermediaries on the Internet. They make Internet communication possible in the first place. In an effort to promote the economic, social, and cultural potential of their services, they commit to the following principles of conduct.
The CCD provides guidelines for handling reports of potentially unlawful domain registrations. It is an act of voluntary self-regulation.
The CCD is intended for registrars based in Switzerland, i.e., companies and individuals who offer domain name services and are subject to Swiss law.
Any services provided by registrars that go beyond domain name services are not covered by the scope of the CCD. In particular, Internet access services as well as services for storing, processing, and making content available to third parties (e.g., hosting or cloud services) are not covered.
3.1 Prohibited Registration or Use of a Domain Name
Registration and/or use of a domain name by the customer that infringes the rights of third parties, in particular intellectual property rights in the broad sense (such as copyrights or trademark rights) or personal rights, or constitutes a criminal offense (such as in the areas of pornography, depiction of violence, racism, and defamation).
3.2 Domain Name Service
A service offered by a registrar for the registration of the domain name requested by the customer with the respective competent registry and/or the administration of the domain name registration.
3.3 Customer
Recipient of services from the registrar with whom a contract regarding domain name services exists.
3.4 Notice
A notification from an affected party stating that a domain name registration held by the customer or the customer’s use of a domain name is unauthorized.
It is required that the sender be more than just a third party or the general public affected by the alleged infringement. In cases of violations of personal rights and offenses requiring a complaint, this includes the injured party (or their representative); in cases of intellectual property rights infringements, it includes the person entitled to ownership or licensing rights to the content (or their representative). In the case of offenses prosecuted ex officio, no specific involvement of the sender is required.
Substantively and formally, a notice must contain at least the following information:
As intermediaries on the Internet, registrars provide services that enable website operators to make content publicly available to third parties. Registrars have no knowledge of how their customers use domain names. They are also not obligated to actively monitor the registration of domain names or their use. The customer alone is responsible for the registration and use of domain names, as well as for the content that they store, process, or make available to third parties using the domain names.
The registrar’s obligations defined in the CCD serve the purpose of making it easier for persons affected by unauthorized registrations or use of domain names to take action against the registrant.
5.1 The Registrar shall review any received Notice to determine whether it meets the substantive and formal requirements of Section 3.4. In assessing these requirements, the Registrar shall apply the standard of a legal layperson.
5.2 If the received notice does not meet the formal and/or substantive requirements of Section 3.4, or does not meet them in full, the Registrar shall request the sender of the notice to supplement the notice within two business days of receiving the request. If the sender does not supplement the notice within the deadline, or if the supplemented notice also does not meet or does not fully meet the formal and/or substantive requirements of Section 3.4, the Registrar will not process the notice further.
5.3 If the received Notice fully meets the formal and substantive requirements of Section 3.4, the Registrar will generally send a notification to both the customer and the sender of the Notice within two business days of receiving the complete Notice.
6.1 If the notice received fully meets the formal and substantive requirements of Section 3.4 and, with a high degree of probability, concerns the unauthorized registration or use of domain names, or if the registrar itself could be held criminally or civilly liable, the registrar may, at its own discretion, take the following measures:
6.2 The CCD does not replace any domain dispute resolution procedure (of SWITCH or WIPO) or any administrative or judicial proceedings related to domain disputes. If, due to pending proceedings, a domain name has already been administratively or technically blocked by the registry, or if any other measure restricting the customer’s authority over the domain name has been ordered by an administrative or judicial authority, the registrar may no longer decide on these measures.
6.3 Immediately before or after taking the measure pursuant to Section 6.1, the Registrar shall inform the Customer of the receipt of the Notice, forward the Notice to the Customer, and inform the Customer of the reason for the measure. At the same time, the Registrar shall inform the sender of the Notice of the measure taken and the communication to the Customer.
6.4 The Registrar shall decide at its own discretion whether to report criminal offenses to KOBIK (National Coordination Unit for Combating Internet Crime) or to law enforcement authorities.
6.5 The standard of a legal layperson applies to the assessment of the completeness of the notice as well as to the discretion regarding measures under Section 6.1 and reporting.
7.1 The Registrar shall ensure that its agreements with the Customer contain, at a minimum, the following provisions and notices:
The registrar shall implement internal organizational measures to ensure that notices are processed promptly. It shall designate a person as the primary contact responsible for unauthorized registrations and uses of domain names and shall communicate on its website how and to whom notices are to be submitted for processing under the notice-and-takedown procedure, for example via an online form.
Swico provides its members with templates for the communications to customers and to the sender of the notice mentioned in the CCD.
The CCD constitutes a voluntary self-regulatory measure. Given the existing legal uncertainty regarding registrar liability, Swico cannot guarantee that compliance with the CCD will protect the registrar from criminal prosecution and prosecution or civil liability.
This CCD enters into force on April 15, 2020.