Domain Name Disputes
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Domain Name Disputes Rami Olwan Bibliotheca Alexandrina IP and the Digital Age Workshop 20-22 December 2008. Outline. Definition and types of domain names Why domain names are important? ICANN and its functions Conflicts over domain names Resolving conflicts.

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Domain Name Disputes Rami Olwan Bibliotheca Alexandrina IP and the Digital Age Workshop

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Domain name disputes rami olwan bibliotheca alexandrina ip and the digital age workshop

Domain Name Disputes

Rami Olwan

Bibliotheca Alexandrina

IP and the Digital Age Workshop

20-22 December 2008


Outline

Outline

  • Definition and types of domain names

  • Why domain names are important?

  • ICANN and its functions

  • Conflicts over domain names

  • Resolving conflicts


What is a domain name and dns

What is a domain name and DNS?

  • A human- friendly form of internet address, and is commonly used to find a certain web site.

  • Before having the Domain Name System (DNS) , it was difficult for people to remember numbers, and to overcome this, a new system was created to translate IP numbers to letters. The system that we use when we surf the net is called the DNS.


Types of domains names

Types of Domains Names

  • gTLDs: (There are currently 21 gTLDs)

    .com, .edu, .aero, .org .int, .mil, .gov, .net

    .coop, .pro, .info, .museum, .tel, .cat,.jobs

    .name,.travel .asia, .mobi, .biz, .apra

  • ccTLDs: (WIPO is responsible for 56 ccTLDs)

    .AU (Australia),.BS (Bahamas), .CY (Cyprus)

    .GT (Guatemala), .NA (Namibia)

    .PH (Philippines), .SH (St. Helena), .ES (Spain)

    .TT (Trinidad and Tobago), .TV (Tuvalu),

    .VE (Venezuela), .WS (Western Samoa) ….


Why domain names are important

Why domain names are important?

  • Domain name are important assets to business since more effective search is done through brands, products, and services related to domain names than through a search engine.

  • Having the right domain name allow customers to visit a business, and this increases website traffic and business for these corporations.

  • Usually customers can predict the domain name related to a company or a famous mark. If the domain names does not resolve to the intended corporation, this may lead to confusion in the mind of the public and loss of revenues.


Icann

ICANN

  • ICANN stands for the Internet Corporation for Assigned Names and Numbers.

  • ICANN is a public benefit, non-profit entity, international organization responsible for the management and oversight of the coordination of the Internets domain name system and its unique identifiers.

  • ICANN was created through a Memorandum of Understanding (MoU) between the U.S. Department of Commerce and ICANN to transition management of the DNS from the U.S. government to the global community.


Types of conflicts

Types of Conflicts

  • There are different conflicts that occur over domain

    names,and the main ones are as follows:

    1)Registering a domain names identical to a trademark

    (cybersquatting).

    2)Registering a domain nameconfusinglysimilar to a

    Trademark (typosquatting).

    3)Registering a domain name to express disatisfaction

    with a trademark or a corporation (cyber-smearing).

    4) Other conflicts may arise such as : competing use, non competing use and internationalized domain names ….


Resolving domain name disputes

Resolving Domain Name Disputes

  • Conflicts over domain names can be resolved as follows:

    1) Negotiating (may lead to transfer if the registrant agrees)

    2) UDRP (gTLDs and certain ccTLDs).

    3) Registrars domain names dispute policies (ccTLDs).

    4) Local courts (applying traditional trademarks laws or

    cases)

    5) Arbitration and Mediation (in the even that both

    parties, agree).


What is the udrp

What is the UDRP?

  • The UDRP is the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999.

  • Domain name registrants of gTLDs are required to submit to a mandatory administrative proceeding, according to the registration agreement singed between the registrant and the registrar (entity responsible for registering the domain name).


Approved dispute resolution providers

Approved Dispute Resolution Providers

  • ICANN approved the following dispute

    resolution providers:

    1) e-Resolution (ceased working in December 2001 for

    financial reasons).

    2) Asian Domain Name Dispute Resolution Center

    (ADNDRC).

    3) WIPO Arbitration and Mediation Center (WIPO).

    4) CPR Institute for Dispute Resolution (CPR).

    5) National Arbitration Forum (NAF).


Requirements for a remedy under the udrp

Requirements for a Remedy under the UDRP

  • UDRP Paragraph 4(a)

    The three requirements for Complainant to obtain a

    remedy:

    (i) domain name is identical or confusingly similar to

    Complainant’s trademark or service mark.

    (ii) Registrant has no right or legitimate interest in

    respect of domain name.

    (iii) domain name was registered and is being used

    in bad faith.


Examples of bad faith

Examples of “Bad Faith”

  • Circumstances indicate that defendant’s main purpose was to sell DN to TM owner for more than the direct costs of registration

  • History of registering DNs to prevent TM owners from registering

  • Registering a DN in order to disrupt the business of a competitor

  • attempting to divert Internet users to Defendant’s site for commercial gain by creating confusion concerning source or sponsorship

  • False whois details and pornography


Examples of legitimate interests

Examples of “Legitimate Interests”

  • Pre-dispute use or demonstrable preparations to use the DN in bona

    fide offering of goods or services.

  • Defendant was commonly known by the name.

  • Legitimate, noncommercial or fair use of the DN without intent to misleadingly divert or tarnish.

  • The list is not exclusive, and the panelists decide based on the facts and circumstances of each case.


Udrp advantages

UDRP Advantages

  • Mandatory procedure- contractual basis (domain names registration agreement).

  • No Jurisdiction problem (either the principal office of the registrar or the the domain name holder address shown in Registrar’s who is database, see the rules of the UDRP)

  • Quick results (14 days within the appointment of the panelist).

  • Low costs ($ 1500: Panelist 1000,Center 500)

  • Direct enforcement (The registrar will enforce the outcome of the proceedings unless the registrant file a case with a competent court within 10 business days).

  • language is not a problem, proceedings can be conducted in different languages (11 languages are recognized under WIPO)

  • No need to appoint a lawyer (can do it yourself).


Udrp disadvantages

UDRP Disadvantages

  • No Discovery and monetary remedies.

  • No Attorneys’ Fees Awards.

  • Unpredictable outcomes.

  • Inconsistent decisions.

  • Forum shopping.

  • Excessive Impediments to freedom of speech

  • Too much power for trademarks owners; domain name owners too little.


Improved udrp

Improved UDRP?

  • Disputes Assigned randomly to licensed providers.

  • Establish an internal appellate process with every provider.

  • add discovery system.

  • Recognize criticism as a legitimate use under the UDRP.

  • Define clearly what is considered “confusingly similar” and other concepts that may cause disagreement between panelists.

  • Broaden the scope of the UDRP to protect trade names and other identifier (see next slide).

  • The second WIPO process (2002) recommended to provide protection for geographical identifiers and names and acronyms of IGOs (Not for trade names, personal names and International nonproprietary names for phamaceutical identifiers (INNs).


References

References

1. Background materials

  • WIPO Advanced Workshop on Domain Name Dispute

    Resolution, Geneva, October 19 and 20, 2006.

  • William Fisher, Conflicts over domain name, internet law

    program, Rio de Janeiro, Brazil, March 2003.

    2. Websites

    - ICANN at http://www.icann.org

    - WIPO at http://www.wipo.int

    - IANNA at http://www.ianna.org


Domain name disputes rami olwan bibliotheca alexandrina ip and the digital age workshop

Thank you


Domain name disputes rami olwan bibliotheca alexandrina ip and the digital age workshop

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