Definition of abuse

• Author: Paulovics, Ivett
• Pages: 20-21

STUDY ON EVALUATION OF PRACTICES FOR COMBATING SPECULATIVE AND ABUSIVE DOMAIN NAME

REGISTRATIONS

20

5. DEFINITION OF ABUSE

Considered the legal framework described above and the purpose of the Study, different

terms must be distinguished.

According to Article 21 of Commission Regulation (EC) No 874/2004 the term speculative

and abusive registration is related to prior rights identified by Article 10(1).45

The term of abuse, introduced by Commission Regulation (EU) 2015/516, is broader and

is linked to the registrant’s breach of the registration terms contained in Article 3 of

Commission Regulation (EC) No 874/2004, including but not limited to material inaccuracy

in the registration data as well as bad faith registration and infringement of third-party

rights.

The current Regulations will be repealed with effect from 13 October 2022.

Regulation (EU) 2019/517 does not contain the definition of the term speculative and

abusive registration, but makes references to speculative and abusive registrations in

recitals (7) and (17) and in Article 16, abusive registrations in recitals (18) and (20) and in

Article 11(c) and speculative registration in Article 11(b). However, in the light of Article

14(1)(d), the registrations unsupported by rights or legitimate interests and the

registrations used in bad faith are to be considered abusive registrations of domain

names.

In a broader context, within the Internet community, certain abusive activities are referred

to as DNS abuse.46 According to a recent framework developed by registries and

registrars to counter abuse, such activities comprise cybercrime activities such as

malware, botnets, phishing, pharming, and spam (when this latter serves as a delivery

mechanism for the other forms of DNS abuse) and certain website content activity,

namely distribution of child sexual abuse materials, illegal distribution of opioids, human

trafficking and material with specific, credible incitements to violence.47 Although generally

the framework was welcomed by the domain name industry as a positive step48, some

observed that the definition of DNS abuse was excessively narrow and advocated

revisiting it and including, among others, trade mark infringement at the DNS level (within

the string) and copyright infringement at the website content level49.

Thus, on the domain market the term of ‘abuse’ is currently used in different contexts with

different meanings starting from cybercrime to trade mark and copyright infringement,

causing confusion in the interpretation of such term on several occasions.

In the opinion of the authors of the Study, Regulation (EU) 2019/517 (as well as the Draft

Implementing Regulation) traces the path of a holistic approach towards defining abuse

45 Article 21(1) A registered domain name shall be subject to revocation, using an appropriate extra-judicial or judicial

procedure, where that name is identical or confusingly similar to a name in respect of which a right is recognised or

established by national and/or Community law, such as the rights mentioned in Article 10(1), and where it: (a) has been

registered by its holder without rights or legitimate interest in the name; or (b) has been registered or is being used in bad

faith.

46 https://gac.icann.org/activity/dns-abuse-mitigation

47 http://dnsabuseframework.org/media/files/2019-12-06_Abuse%20Framework.pdf

48 http://www.circleid.com/posts/20191017_domain_registries_and_registrars_release_joint_document_on_dns/

49 https://www.worldtrademarkreview.com/anti-counterfeiting/registry-and-registrar-dns-abuse-framework-positive-step-

falls-short