THE DEBATE OVER DOMAIN NAMES

Transcription

1 THE DEBATE OVER DOMAIN NAMES Many of you are probably familiar with the controversies surrounding cybersquatting where third parties buy domain names that are trademarked by someone else (e.g., some guy in North Dakota buys The governing bodies ICANN and the WIPO have designed a system by which domain names can be taken away from the squatters. Read the attached overview of the process and familiarize yourself with the results from the following four cases at the URL s listed. ( ( ( ( Come to class prepared to debate such questions as: What do you think of these particular decisions? Is this an efficient process for resolving conflicts? What should the standards be for taking away domain names? Are there any inherent problems with the current system? Is there any other good alternative? If you would like to find more examples that you can use as evidence to bolster your opinions, peruse the list of cases at

2 TEXT OF THE POWER POINT SLIDES FOR Report of the WIPO Internet Domain Name Process Francis Gurry Assistant Director General WIPO PAGE 1 Genesis USG White Paper, June 5, 1998: The U.S. Government will seek international support to call upon the World Intellectual Property Organization (WIPO) to initiate a balanced and transparent process, which includes the participation of trademark holders and members of the Internet community who are not trademark holders, to (1) develop recommendations for a uniform approach to resolving trademark/domain name disputes involving cyberpiracy (as opposed to conflicts between trademark holders with legitimate competing rights), (2) recommend a process for protecting famous trademarks in the generic top level domains, and (3) evaluate the effects, based on studies conducted by independent organizations, such as the National Research Council of the National Academy of Sciences, of adding new gtlds and related dispute resolution procedures on trademark and intellectual property holders. These findings and recommendations could be submitted to the board of the new corporation for its consideration in conjunction with its development of registry and registrar policy and the creation and introduction of new gtlds. PAGE 2 The Process international support decision of WIPO member States (171), September 1998 balanced and transparent process web site in three languages (E, F & S), 1358 subscribers from 74 countries open meetings with audio and text records available (17 in 15 countries and 5 continents with 1264 participants) list server (420 subscribers) three RFCs in three languages 332 comments on RFCs; altogether comments and presentations from: 40 governments 4 international organizations 74 professional, industrial and academic organizations 181 corporations and law firms 183 individuals

3 PAGE 3 Summary of Results Minimalist approach trademarks only (other problems exist) cybersquatting only (not more general problem of intersection of multijurisdictional medium on territorial systems) Findings indicate significant problem wasteful diversion of resources condemned by all PAGE 4 Registration Practices Purpose functionality and registrar protection transparency and fairness conflict avoidance The open gtlds are undifferentiated (no use restrictions) Reliable and accurate contact details horizontal issue coincidence of interests between intellectual property, consumer protection, prevention of fraud and other public policies Notice and consent Takedown procedure where contact impossible Recommend further study of practicality of non-commercial, use-restricted domain PAGE 5 Uniform Dispute-Resolution Procedure Administrative procedure Limited to abusive registrations (cybersquatting) Mandatory submission by domain name applicants Rapid and cost-effective

4 PAGE 6 Definition of Abusive Registration rights Limited to trademark abuse Three cumulative conditions: domain name identical or misleadingly similar to mark in which complainant has domain name holder has no rights or legitimate interests domain name has been registered and is used in bad faith PAGE 7 Famous Marks Protection under the Paris Convention (152 countries) and the TRIPS Agreement (134 countries) Exclusions as means of giving expression to that protection Public adjudicatory procedure Exclusions for exact name only Evidentiary presumption in anti-cybersquatting procedure Possibility of complete or partial cancellation PAGE 8 IP and New gtlds IP one of multiple perspectives Need to avoid repetition of experience of last five years Can do so if improved registration practices efficient dispute-resolution mechanism exclusions controlled introduction PAGE 9 Outstanding Issues Report adopts a minimalist approach Examples of issues not treated other intellectual property rights (geographical indications, personality rights) internationally (and nationally) protected names and acronyms (States, UN) INNs non-commercial, use-restricted domain

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