Domain Name Disputes Essay
Domain Name Disputes
A domain name is user-friendly way of expressing the Internet Protocol (IP) address of a web location. When the domain name of the web site is entered, it would provide a direct link to access the content located on the site of the IP address. The domain name has characters and numerals separated out by dots (. ) which suggest various levels in the domain name. A domain name can have anywhere between one to 63 characters, and can include certain special characters such as (-). The valid characters of the domain name include A to Z and 1 to 9 and 0. Capitalisation is not used as a method to distinguish from one domain name to another .
Domain name has been a very user-friendly way of accessing content on the internet, and hence people often use it to search for businesses on the net. Today’s domain name system was earlier utilised by the network set up by the department of defence and academic organisations for research and communications purposes. This Domain name system (DNS) was initiated as early as 1984 and has been extended to all areas of the world where the internet is accessible today. The domain name would actually convert into an IP address, which would suggest a physical location of a computer or a system on the Internet .
Since, not more than one site can have one address; there have been a lot of conflicts in the use of domain names. A particular domain name would have different levels. The various levels in the domain name are separated or recognised using the special character dot (. ) (to differentiate between the various levels). If you take the domain name abc. xxx, it is a second level domain name, consisting of 2 levels, abc and xxx. On the other hand, mno. abc. xxx, consists of three levels, namely mno, abc and xxx. The characters in the domain name are usually counted from the right to the left .
The Internet protocol addresses, domain names, etc, which are utilised for internet management are today generally handled by an organisation known as the “Internet Assigned Numbers Authority” (IANA). In turn the daily affairs regarding the assignment of top level and second level domain names are taken care of by individual Internet Registries (IR) . There are several hierarchies of domain names including top level domain names (TLDs’), Second Level Domain names (SLD’s), third level domain names (3LD’s), etc. The management of the top level domain names are done by the ICANN at the international level.
They also provide resolution of disputes at the international level through an arbitrary and simplified process known as ‘UDRP’ (Uniform Domain Resolution Policy) . The TLD’s are the domain name that appears after the last (. ) in the domain name. For example, in a general domain name such as abc. com, the . com is the TLD. Again, the TLD can be of two types namely, a generic TLD and a country specific TLD. The generic TLD’s include . com, . net, . info, . xxx, . org, . edu, . tv, . res, . mil, . gov, . int, etc. The country specific TLD’s include Top level domain names that are specific to certain countries such as .
fr, . eu, . in, . my, . us, etc. For specific top level domain name types, a specific registry would be approved (assigned by the ICANN), to assign, manage and handle any issues that may arise for that TLD . TLD’s can be again classified as two types depending on the restriction imposed to register and assign, including restricted generic TLD’s and unrestricted generic TLD’s. Restricted generic TLD’s would require certain amount of eligibility to register in the registry. For instance, the TLd . int, requires that the body registering be an international approved organisation such as the WIPO, WHO, etc.
No person can register under this TLD without eligibility. Verisign (an internet registry) would likewise permit registration of telecom organisations to register under the generic TLD . net. Only non-profit organisations, institutions, voluntary organisations, etc, can register under the TLD . org. Organisations that are governmental in nature, can register under the domain name . gov. Unrestricted domain names, do not require eligibility regarding organisation type or geographical location, and any person can register under such domain names without restrictions, on a first come first served basis.
One such domain name is the . com, which accounts for about half of all the domain names registered in the world. People wanting a domain name under the . com TLD, need not demonstrate any eligibility, but can register a particular domain name on a first come first served basis . Many people site that the greater amount of interests by commercial organisations in the . com registry and the offering of registration on a first come first served basis, has created huge conflicts in the domain name allocation. Country coded top level domain names are assigned domain names based on country specifications.
Only if the organisation is located in a certain country or provides business or services to a particular country would it be permitted to use that ccTLD. For instance . uk or . my are TLD’s belonging to the United Kingdom and Malaysia, respectively . The second level domain name is the portion of the domain name that lies before the (. ) of the TLD. This may include a unique name corresponding to an IP address or may be even suggestive of the geographical location of the business. For instance in abc. net, the second level domain name is abc. On the other hand, abc. uk.
org, the second level domain name is . uk, and it suggests the country code. Abc, would then belong to a third level domain name (3LD). The United Kingdom is a country that follows a top-level country coded domain name. For instance, the domain of several organisations in the UK would be abc. org. uk and not abc. uk. org . Domain name and Intellectual Property Rights Many courts have tried to define what a domain name is. They consider it to be an address, which has to be selected by the user, and since one user would be using one address, it needs to be unique and not identical.
The courts also give consideration that people would often try to guess the web address from the name, location and other features of the applicant. A domain name is more of a sign or a mark which can help to distinguish the goods and services of one trader from the goods and the services of another. Hence, a domain name can be having an intellectual value and can be given an “Intellectual Property Right Protection” . Following a rise in the traffic and popularity of the internet, there has been a rise in the domain name issues.
Domain name were considered to be earlier more of addresses that helped to located the trader or an organisation on the cyber world. However, today domain names are turning out to be more of identifiers, trademarks, marks or indications of the goods, services, etc, of a particular trader. A domain name consists of alphabets, numerals, punctuation marks, etc, and hence possesses the characteristics of a trademark. For many companies, the value of the domain name is considered great as they would be using the internet for business .
Today domain name rather than the name of the companies are considered to be identifiers and are often being used as advertisements. Hence, in many instances, domain names and trademarks are in conflict. It is important to note several special characteristics of domain names:- 1. They are global as once they are registered anybody from the world can use the address to gain access to the trader’s web site 2. They need to be unique as only one address can lead to a web site 3. Domain name are often guessed by the users, and hence minor changes or errors need to ensure that the user still is able to reach the intended location 4.
An honest and current domain name user cannot exist as in the case of trademarks 5. Domain can cannot be given for style of writing, colouring patterns, use of images, etc Companies have moved their business over to the internet and this has created several conflicts with the traditional trademark owners. If a traditional trademark owner finds that a internet business company is using a name similar to the trademark’s owner, then he has to prove that the internet business is in fact using the name in bad faith, trying to dilute the name of the trademark owner, to create unfair competition or to create confusion in the minds of the consumer.
Earlier, the NSI had a dispute resolution policy, but there was a lot of controversy in the processes, such that both opposing parties had to come to an agreement. The ICANN has implemented URDP that would be applied in all domain name disputes that are used in bad faith . Organisations concerned with domain name Issues When the internet was initially started and expanded for commercial and academic use, the non-military segment of domain name allocation was done by the NSF (National Science Foundation).
This was followed till 1992, and in the year 1993, the Network Solutions Incorporation was formed which helped to register all the generic TLD’s, . net’s, . com’s, etc . Till the year 1999, the NSI ensured that all the registration and allocation of second level domain names for the major TLD’s was brought about. Considering that about half of all the domain names are in the . com segment, NSI had a major role to play in allocating domain names. They also had some amount of control over dispute resolution processes. However, the NSI did not have any official mediation processes, and was not responsible officially for domain name conflicts.
Initially, the NSI provided registration to the domain names on a first come first served basis and did not check the credibility of the registering organisation. This according to many has led to conflicts regarding domain names across the world. The NSI did not check whether the domain name was a part of the party’s name . Slowly there was huge controversy regarding the manner in which domain names were allocated and provided registration by the NSI. There was a huge increase in the trademark disputes especially in the . com TLD domain. The IANA had no concern for legal issues over the domain name allocations.
Hence, many nations including the US had concern over the allocation of domain names over the internet . In 1997, the management of several generic TLD’s were handed over to the International Ad Hoc Committee (IAHC). The organisation helped in framing 7 new generic TLD’s and ensuring greater amount of healthy competition in the second level domain names . The NSI and the IANA were together concerned with the development of a set of rules and regulations for the assignment of domain names. They developed a corporation that would have jurisdiction for the assignment of domain names throughout the world.
This organisation (ICANN) also helped in the development of rules and regulations for the internet domain names. The US DOC also played a major role in the development of the ICANN. The final version of the bylaws by the ICANN was released on October 2, 1998, and released by the DOC. On November 1998, the ICANN and the DOC decidedly to jointly design rules, regulations, mechanisms and methods to ensure Domain name functions. The DOC and other organisations were interested in bringing about better competition and ensuring stability.
The role of the US government was slowly being transferred to the ICANN. The NSI also changed its name to Verisign. It was concerned with developing a shared registration system and provides services under the generic TLD’s such as . com, . net, etc. Verisign has to sell certain number of registers in order to have authority of the . com register in 2001. However, some of the registries of Verisign and ICANN still are shared from May 2001. Verisign would operate various registries such as the . org registry till 2002, the . net registry till 2005, the . com registry till 2007.
The ICANN has allocated the . org registry from 2002 to 2008 to Public Internet Registry and Verisign for the . net registry from 2005 to 2011 . Public and social issues concerned with domain name allocation The domain name has turned out to be a huge business model for several companies. The ads-per-click policy, which would ensure that advertisements placed in the domain name would make more money than the domain itself, would ensure that the domain is continued. On the other hand, if the cost of the domain is more than the advertisements, then the domain is ceased for the next year.
There is also a five-day grace period (following registration), which ensures that anybody who has registered a wrong domain can go back and correct his/her mistake. Today, domain names are created and dropped at a very fast rate, and hence, people are in huge confusions. This is happening at a very fast rate, even faster than the rate trademarks are picked up and dropped. To ensure certain amount of control at the rate at which the domain names are picked up and dropped, the ICANN is monitoring several registries. It has given certain number of its registries to companies that can sell out domain name.
Such companies are known as ‘registrars’, and they would usually be working on the . com and . net TLD. However, the ICANN has introduced a 5 day window period, which would allow the registering body to make changes or take back the domain name registration within a period of 5 days. The ICANN can also recommend the owner to make modify or even remove certain domain names registered during the window period. This would ensure that any illegal activities or potentially abuse over the internet can be prevented. At the same time, healthy competition can be encouraged over the internet .
Since January 003, there has been a shift in the management of the . org TLD from Verisign to the Public Internet Registry, which is an organisation created in 2002 keeping the public internet in mind . During the mid-1990’s, the US government decided to shift several infrastructure and governance that the US government and the military had over the internet over to private bodies. The government felt that the main reason for implementing such policies were because the industry themselves can specialise in creating effective policies and ensure development and advancement through regulations and policies framed over internet.
The US government also tried to install several institutional controls means to ensure that the private bodies that had certain governance over the internet. Several organisations such as the ICANN and the IAHC also felt that the international involvement was very important in developing a domain name policy. However, the US government was also concerned that the internet control may go out of US hands and hence framed certain principles in the form Green Paper and White Paper. The White paper included several characteristics such as dominant coalition, steadiness, competitiveness, private, bottom up coordination, representation, etc.
The ICANN brought about a transfer of the DNS control from the US government to the global environment. The entire interest of the community was needed to be represented through the actions of the ICANN, which included organisations, society, communities, etc. The ICANN had a bottom-up approach of governance. Many people feel that the ICANN has made the internet very much suited for public interests and before the ICANN had any control over the internet, it was more of a private domain that was exclusively controlled by the US Federal Government.
Many people say the internet developed from resources of the Federal government and the military. However, it is also important to note that neither the federal government nor the military had any role to play in the day to day policy-making, decision-making and management of the internet. The policy making and the management of the internet has developed through interactions between private organisations having certain authorities over the internet. Besides, users and institutions also play a very important role in giving feedback to these organisations.
Whatever policies are being developed by the ICANN or Verisign are done considering public benefit. By handing over the internet governance to appropriate authorities, not only are the problems solved regarding usage, content, etc, but day-to-day management issues are also well sorted out . Many people consider that by handing over the internet to private organisations, the US government has not privatised the internet, but has handed over it to the private sector decision-makers that would specialise in framing policies and managing issues with regards to domain names.
The NSI was the first private organisation to manage the Domain name registration and allocation. The NSI, ICANN and other such organisation gave a lot of importance to domain name as a unique method of accessing a web site. Hence, today domain name is considered as an important property by several organisations, which would often be using it as a trademark. The issue of cyber-squatting was also prevalent due to the importance given by these organisations over domain name . Many people consider that domain name is private properties.
However, considering the oppositions laid by other parties over the specific use of domain names and the implementation of strong registry services, demonstrate that Domain names may not exactly be private property. The ownership of these registries lies with the appropriate organisations, but certain amount of information is available to the public. The ICANN has come out strongly that the information stored in the registry database lies specifically with the owner or applicants, and only the database as a whole is owned by the registration organisation .
Property rights and Domain names Property rights help to delimit the extent to which the rights of the individual would apply and the rights of the public would end. Several policies such as endowment, approximation and institutionalisation were applied to ensure proper enforcement of property law. The owner of the property has the right to benefit from his property and reap the fruits. The owner of the IP has to benefit from his right by defending the economic benefits.
The owner would be having a certain monopoly with regards to his intellectual property right, but at the same time his ownership cannot be guaranteed, as all intellectual property rights instruments are not perfectly efficient. They would and should ensure certain legitimate use by other parties within certain limits. The owner is left to utilise his intellectual property effectively such that he can exclude others and claim the most economic benefits. In certain cases, there may be certain excesses which would anyway land in the hands of other parties including public and the rivals .
In the case of domain names, the IP application seem to be simple and straightforward, but over a period of time a lot of controversies have developed requiring a lot of legal control. Earlier it was even difficult to transfer a domain name used by one individual to another. However, following the implementation of several rules and regulations, it is now possible to transfer the domain registry from one person to another. However, there is still controversy regarding the . com registry agreement between Verisign and the ICANN. Verisign would operate the .
com registry and provide registration for . com’s. On the other hand, it would follow the policies laid down by the ICANN, and pay ICANN for its services (of policy-making). Today several registries that carry information and details regarding the registration of domain names do not exactly specify who the owner would be. If such an agreement is missing, then the domain names would be owned by the registries or according to the ICANN it would be owned by the public. If one single organisation owns such a registry, then it would not help to meet the rights of the other parties.
For instance, earlier, the NSI only managed the registry of . com’s, and slowly other organisations such as Verisign, ICANN, etc, have been involved. This would ensure greater stability and sustainability. Currently, the registry database has been owned by the organisation that has been merely allocated responsibility. This does not speak legitimately of being the owner of the domain names. Currently, the monopoly of the generic TLD lies with one organisation and the country code TLD rests with certain organisations that the government of the country has allocated to.
The ICANN has freely encouraged the transfer and the reassignment of domain name rights from one party to another. The rights are transferred in such a way that they would end up with owners who are in a better position to make effective use of the resources. However, transferability of domain name registries is subjected to certain limitations. Several generic TLD registries and the ICANN have contractual agreements. Either of the parties should be able to transfer the rights to another party with a mutual consent. For example the NSI was taken over by Verisign and so were the registries.
However, the person taking over the registry may not always make full benefit of the registry and may not full the responsibilities mentioned. In a dynamic internet environment, there is also the possibility that the new registry owner may not make full use and understand the importance of the contents of the registry. When one company would be buying over the other company, the registry would also play a very important role in the takeover costs. The free transferring of the domain name registries would create an instable domain name registry.
In the generic TLD, the registries are monopoly, and hence if the information of the registry is not transferred during ownership transfers, the entire domain would be affected . Any property right instrument should ensure that the owner can exercise his right and also transfer his ownership to other parties freely. However, in the case of registries, as there a lot of problems with regards to stability and continuation of the system, the information of the registry is not a property of the registry organisation, but in the public domain. Domain Name Disputes and Arbitration
The sudden explosion over the use of the internet in today’s world has placed domain names in direct conflict with trademarks. The use of a domain name would apply throughout the world, as the internet is accessible throughout the world. On the other hand, the trademark laws of a particular nation would vary with that of another, and hence, there is always a chance that trademark laws and domain name laws are in direct conflict with one another. Domain names would apply to the product and services of a service provider and hence ought to be given the same protection as trademarks .
On the other hand, registries that register domain names give the importance of registering on a first-come-first served basis. Oppositions would say domain names contains alphabets and numerals, and hence, qualify to become a trademark. However, no rule is hard and fast. Domain name owners feel that the domain names are not protected under trademark laws as the internet is a global media having no offline limitation. On the other hand, the trademark owners feel that domain names are trademarks and hence are liable to file for dilution, unfair competition, etc .
One of the main reasons as to why there is intense disputes with regards to domain names, is due cyber-squatting, in which somebody would register a particular domain name, and later try to sell it to the trademark owner. Domain name registries are accepting registration of domain names on a first-come first-served basis, and hence any person can register a popular trademark as a domain name and later plan to sell to the trademark owner. Often the prices quoted by the cyber-squatters are much more than what is paid of registration.
Besides, cyber-squatters can misuse the trademark of the owner, and in turn wrongfully attract customers or tarnish the name of the original trademark owner . In the year 1995, the NSI framed a policy to settle disputes between domain name holders and trademark holders. The NSI is left out of the conflict and does not have the right to suspend the services of the domain name holder. Slowly, the importance of the trademark owners began to be felt. Trademarks owners can extent their services on to the internet, considering that it would be an ideal environment for business purposes.
Customers on the other hand may also consider domain names being similar to trademarks for search purposes . One of the means of solving domain name disputes is by adopting the Uniform Dispute Resolution Policy implemented by the ICANN in 1999. This is mainly to solve the disputes that arise between domain name owners and trademark owners. The WIPO Arbitration and Mediation Centre would conduct the UDRP procedures. The process is much faster than the courts, and besides the decisions given is credible and impartial. The fees that are imposed are less than the routine courts . ICANN and UDRP
The ICANN UDRP has been implemented for several TLD’s including . net, . com, . org, etc. However, it is not applicable to the country level TLD’s, such as . uk, . in, etc. The dispute resolution policy would occur between the domain name holder and the registering authority, such as country-coded domain registering organisation. The UDRP would set the terms and conditions that would arise in case of conflict arise between the domain name holder and any other party, except the registrar (ICANN). According to the ICANN, certain terms and conditions need to be followed when registering for a domain name.
The registrant should ensure that all statements made are true, complete, and the domain name would not violate the rights of others. The domain name so registered would not be done for an illegal cause and would not be used to overcome any law. Any action done for the domain name would be lead to the owner being held responsible. The ICANN can transfer, modify or cancel a domain name registered if the domain name registrant requires so, if the court having a jurisdiction requires that the domain name be changed or cancelled or if a relevant administrative body requires that the domain name be changed or expelled.
Depending on the situations, the ICANN would make a request to the domain name holder to perform such changes. The URDP procedure would be conducted before an administrative tribunal. Usually such tribunals would come into action whenever a third party has an issue with a particular domain name and files an application for objection before the ICANN. The three elements of conflicts arise include:- • Domain name similar or confusingly similar to a trademark (and the complainant has filed an objection before the URDP) • The registrant has no interests legally over a particular domain name
• Domain names which have been registered and utilised in bad faith Only if these three elements are proved during trial before the administrative tribunal (by the complainant) would the complainant be able to prove that the domain name registrant has registered the domain name in bad faith. During the course of trial, the complainant should be able to prove certain evidences:- • The domain name registrant has primarily registered the domain name to sell, rent or transfer the domain name to the true owner later (who is the current trademark holder).
• The domain name registrant has registrant has tried to register the domain name with the sole purpose of selling the domain name later to a competitor of the complainant. • The domain name has been registered to prevent the trademark holder from using the domain name for his usual business. • Domain name has been registered for obstructing the usual trade of the complainant. • The domain name registered has registered the domain name so as to create confusion in the public or to have an association with the original trademark holder and gain commercially.
There is every chance that the people would get confused in such a situation and may get attracted to the domain name . The domain name holder however has certain rights over the legitimate claim and use of a domain name. Some of the legitimate interests of the domain name holder include:- • The domain name is being utilised for the honest interests of the domain name holder • The domain name holder has created a separate identity for himself and is known most often by the domain name, even though a separate trademark does not exist.
• The domain name has been created for legal and non-commercial interests, meeting up to the fair use clauses. • The domain name has not been created to confuse people with an association to a particular trademark or to tarnish/dilute the image of the original trademark holder . The complainant has the choice of selecting an administrative tribunal from the variety offered for handling that particular case. The ICANN would appoint a panel that would discuss the case and offer its decision based on evidence.
The complainant or the respondent can file a single administrative hearing before the panel if multiple disputes are present. The administrative panel has the right to discuss all the cases as one or separate each out, depending up on the policy of the ICANN. The fees for the administrative procedure under the URDP would be paid by the complainant, and in case the complainant requires that the panel be increased from one member to three members, the fees would also increase and would be payable by the complainant and the respondent.
The ICANN would not participate in any administrative procedure held in front of the administrative panel, and at the same time cannot be held liable for any decisions given by the panel. In case the complainant is able to prove his/her point, the domain name of the respondent would be cancelled by the administrative panel and would be handed over to the complainant. Once the administrative panel makes a decision, the ICANN would be informed, and the efforts would be made by the organisation to inform the public through the website.
In certain cases requiring reasonable secrecy, efforts would be made not to publish such information . If the respondent wishes to seek justice, he can further go to the appropriate court and file his case before, it and the ICANN would not interfere in this matter. The ICANN would within 10 days cancel or transfer the domain name, but in case of a lawsuit, it would wait for then 10 days for the notice and not enable the decision of the administrative tribunal.
The ICANN may also not implement the decision of the administrative tribunal in case a fair agreement has reached between the complainant and the respondent regarding the use of the domain name. The ICANN and the URDP cannot be considered as evidence in any case regarding a dispute of a domain name . There may be certain periods of time when a domain name cannot be transferred from one party to another. This may include during an administrative enquiry, ongoing court lawsuit, etc. All policies framed by the ICANN would be made known to the public at least 30 days in advance before the policies are implemented.
If the policies of the ICANN are not suitable for a particular domain name, then the domain name holder can cancel his registration and reapply, when the rules are changed . The member who belongs to the administrative panel should provide an impartial and independent decision during the process of discussion. In case certain decisions have to be made in an impartial way, then the provider should be informed of the same. The URDP procedure is an instrument meant to ensure interests of the public and the society along with certain number of private interests.
The URDP procedures are primarily arranged to manage cases in which domain names have been registered in bad faith, misappropriation or for a wrongful intention, so as to destroy the good name of the trademark owner. These cases would hence extent to situations in which the domain name are similar or confusingly similar to the trademark owner or have been registered in bad faith. The URDP would be doing case-by-case analysis and would be providing an appropriate decision based on the evidence and the facts