IMPROVING ICANN IN TEN EASY STEPS: TEN SUGGESTIONS FOR ICANN TO IMPROVE ITS ANTI-CYBERSQUATTING ARBITRATION SYSTEM

Domain names have a dual role in today’s internet driven market place – to map IP addresses and to act as identifier of trademark of a company. Unlike trademarks, domain names are not sufficiently protected by the laws of a country. There is no uniformity to protect domain names among the laws of various countries. In order to protect the domain names and bring uniformity, ICANN developed the Uniform Domain Name Resolution Policy (UDRP). In this research, the various kinds of domain name abuses are identified. The application of UDRP, domain name registration process and dispute resolution service process are examined. The major domain name dispute cases resolved under UPRP by WIPO are studied. It has been found that UDRP is applicable to generic top level domains (gTLDs) and new gTLDs. It is much less relevant for country code top level domains (ccTLDs). The losing party still has the option of appealing to a court of competent jurisdiction in case of gTLDs and new gTLDs. However, this option is seldom exercised. In order to protect the domain names in a better way, there is a need to bring uniformity to domain name laws of various countries. ICANN should formulate a model domain names dispute resolution law for adoption by various countries. Also, there is a need to strengthen the UDRP.

A domain name is a nonphysical asset like a trademark, trade name, business name, or unique sign. Registering a domain name, composed of words, letters, or numbers, grants the registrant a contractual right to its exclusive use. However, simply registering a domain name does not provide ownership rights. To acquire ownership of a domain name, the registrant must demonstrate justified use or legitimate interest in the domain name. Even without an initial justifiable or legitimate interest, utilizing the domain name to achieve distinctive authority can lead to ownership rights. A domain name comprises both absolute and contractual rights. Thus, domain names, comprising both absolute and contractual rights, can be considered a form of property right. The legal nature of domain name rights has been addressed in rulings by both the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU).

India’s Domain Name Dispute Resolution Process: An Empirical Investigation

Domain Names are embodied to play a dual role in today’s internet based or driven marketplace – to map IP addresses & to act as an identifier of a company’s trademark. Unlike the trademarks, the protection of domain names under the legal mechanisms (laws) of a country is inappropriate or ineffective. There is a lack of uniformity to ensure the protection of domain names among the legal framework of various nations. With an aim to protect the domain names or ensure the resolution of domain name disputes, Uniform Domain Name Dispute Resolution Policy (UDRP) was founded under an US based organization is Internet Corporation for Assigned Names and Numbers (ICANN). In this research paper various categories of domain name disputes are critically analysed and identified as well. UDRP’S application, procedure to register a domain name & dispute resolution service process are also analysed, examined and intensively discussed in this research paper. Notable cases and their outcomes pertaining to the major domain name disputes resolved under the World Intellectual Property Organization (WIPO) are also critically analysed. It has been explored that the UDRP is applicable to the generic top level domain names (gTLD’s), in other words UDRP’s applicability extends to the (gTLD’s) but, it’s relevancy for country code top level domains (ccTLD’s) is much lesser as compared to former. The losing party still has an option to file an appeal to the court of a competent authority or jurisdiction in matters related to the (gTLD’s) and new (gTLD’s). However, this option is not opted for or exercised frequently (seldom exercised). With a view to protect the domain names in an appropriate manner, there is a need to make the domain name laws of various nations uniform. ICANN needs to formulate a model domain names disputes resolution legal mechanisms for the adoption by various nations. UDRP must be strengthen too. As research proceeds, it is made apparent that existing legal instruments are ineffective in handling these disputes appropriately. Here, we will also elaborate into the various kinds of domain name disputes like “Cybersquatting”, “Typo Squatting”, “Profit Grabbing” & “Domain Names Warehousing” etc. This research paper also explores .IN Domain Name Dispute Resolution Policy (INDRP) in India.

Background: Domain name disputes arise concerning the protection of rights to domain names. The legal nature of a domain name as an object remains uncertain, leading to ambiguity in its legal regime. This uncertainty creates challenges in law enforcement and affects the procedures for resolving domain disputes. Ukraine's current civil legislation does not clarify the classification of domain names within the system of civil rights objects. However, the growing role of the digital environment has significantly increased the importance of domain names, contributing to increased disputes over their ownership and use. While the law does not provide for a special procedure for the consideration and resolution of domain name disputes, both judicial and extrajudicial protection procedures are applied, taking into account the peculiarities of the legal nature of domain names. A unique feature of the protection of rights to domain names is the possibility of initiating and resolving a domain name dispute under the UDRP without the involvement of state institutions such as courts or bodies of the Antimonopoly Committee. The absence of proper legal regulation of the domain name as an object and the specifics of domain name dispute resolution has led to ongoing academic discussions on these issues. Methods: The article's primary purpose is to investigate the legal nature of domain names and study the procedures for resolving disputes related to them. In this regard, the article first analyses a domain name as an object, defines its legal nature, characterises the position of the ECHR while contributing to the broader scientific discussion on the legal certainty of domain names. The article further analyses the peculiarities of judicial and extrajudicial protection of rights to domain names. It establishes that such protection can be pursued through both jurisdictional (judicial procedure or appeal to the Antimonopoly Committee of Ukraine) and non-jurisdictional forms. The study further describes the procedure for resolving domain name disputes by the court and the Antimonopoly Committee of Ukraine, identifying the main problematic aspects associated with these processes. Particular attention is given to the scientific analysis of the procedure for resolving domain name disputes by the UDRP. The article outlines the main stages of domain name dispute resolution under the UDRP and explains the content and peculiarities of bad faith domain name registration, which often serves as the basis for disputes. Subsequently, the author formulates conclusions on improving the legal regime of a domain name, as well as on the procedure for resolving domain disputes. Results and conclusions: Domain disputes are a common category of cases resolved both in and out of court. The author considers that difficulties in resolving domain disputes are caused by the legal uncertainty of a domain name as an object of civil rights. Currently, the legal nature and legal regime of domain names are not defined in the law. There is no special law governing domain names, and while the Civil Code of Ukraine and other legislative acts mention them, they do not comprehensively regulate the rights associated with them. The study proves that, in this regard, domain name rights are protected through other objects reflected in a domain name, such as trademarks, commercial names, geographical indications, copyrighted objects, and names of individuals. The author substantiates that a domain name is an independent object that may be subject to sui generis law and which grants domain name owners (in particular, registrants) special property rights to use a website (administration, use, etc.); these rights can be transferred (for a fee or free of charge) and can be waived. The author further establishes that domain name disputes may be resolved in or out of court. It is considered that the practice of resolving domain disputes under the UDRP is widespread. At the same time, its drawback, which should be addressed, is that it applies only to disputes involving trademarks reflected in domain names. The approach to resolving such a dispute is based solely on proving the unfair nature of the domain name registration. It is substantiated that these circumstances significantly narrow the possibilities for applying the UDRP in resolving domain name disputes. To address this limitation, the author proposes supplementing the Law on Marks to include a special method of protection: granting trademark certificate holders the right to demand the re-delegation of a domain name as an additional method of protection.

This paper investigates the legal mechanisms that are available when one is dealing with domain name disputes. It describes the domain name system and contrasts this with other forms of intellectual property. The different types of domain name conflicts are discussed and the legal measures available for protection of domain names as intellectual property are highlighted. Reference is made to national protection measures such as the Trade Marks Act 194 of 1993 and common law protection of intellectual property. Certain international legal mechanisms such as the World Intellectual Property Organisation’s rules with regard to online domain name dispute resolution and the United State’s Anticybersquatter Consumer Protection Act of 1999 are also discussed as these measures have a direct influence on some domain names of South African businesses. Lastly the changes to domain name dispute resolution procedures envisaged by the Electronic Communications and Transactions Act 25 of 2002 are discussed.Since the advent of e-commerce a new species of highly valuable intellectual property has developed. Although there are remarkable similarities between domain names and “common law trade marks” and trade marks protected by the Trade Marks Act 194 of 1993 there are also important differences, which cause uncertainty and confusion when disputes involving domain names arise. These differences flow mainly from the unique characteristics of domain names. The purpose of this note is to investigate the domain name system as it is used in South Africa, to compare domain names and trade marks, and to look at the protection mechanisms which an aggrieved party may have at his or her disposal if he should find that his business name or trade mark (or something similar) is being used by a domain name registrant in a way that conflicts with his interests. In addition, a short comparison of how these problems are addressed by the international community, particularly the USA and Britain, will be made.

The rise of online sales post-COVID has fueled domain name misuse, sparking conflicts between trademark owners and cybersquatters. This study delves into the Uniform Dispute Resolution Policy (UDRP), focusing on how “bad faith” is defined and applied in domain name disputes. By examining over 200 cases, the research identifies patterns in arbitration decisions and unwritten criteria that panels use to determine bad faith registration and use. It introduces a conceptual model that aligns three key UDRP criteria: confusing similarity, legitimate interests, and bad faith.

Cybersquatting has become a serious problem in China and other Asian jurisdictions. In 2017, it was reported that around 10 percent of the .cn domain names were registered by cybersquatters. This chapter explores the domain name dispute resolution mechanisms in mainland China and Hong Kong by illustrating how domain name disputes associated with trademarks are resolved through the implementation of Uniform Domain Name Dispute Resolution Policy (UDRP) and litigation in these two jurisdictions. Section I of this chapter illustrates the convergence and divergence of the civil law and common law approaches to domain name dispute resolution. Section II outlines how these two jurisdictions implement the UDRP via the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Centre (HKIAC). This section focuses particularly on the grounds for trademark owners to complain against domain names registered by other parties. Section III analyzes how parties use the court to solve domain name disputes in the two jurisdictions. Section IV probes trademark disputes and the new business models in China resulting from the introduction of new general top-level domain names (gTLDs) in 2012.

A domain name that infringes a trade mark but does not cause initial interest confusion, while promoting non-commercial freedom of speech, may constitute a defence based on a right or legitimate interest in the domain name.

The article is devoted to a complex scientific study of the procedure for consideration and resolution of domain disputes. The article discloses the legal nature of the domain name, features of judicial and extrajudicial dispute resolution. It has been established that the subject of domain disputes is the illegal use of other people’s trademarks, commercial names, other commercial designations, and copyright objects in domain names. It has been proven that the procedure for resolving domain disputes can be judicial or extrajudicial; in the case of a judicial procedure for the protection of rights to a domain name, disputes are considered by a court, in an out-of-court case, by an arbitrator of the WIPO Mediation and Conciliation Center (or another similar structure). It has been proven that a significant problem in law enforcement is legal uncertainty regarding the legal regime of a domain name. It has been established that a domain dispute arises regarding the legality of the use of a domain name by a certain person. It is justified that a domain and a domain name are not identical concepts; a domain name is a unique name of a part of the hierarchical address space of the Internet, in relation to which domain disputes arise. It is substantiated that the determining factor for the protection of the violated right by the court is the correct identification by the plaintiff of the object of the intellectual property right, for the protection of which a case has been initiated in court, and which is reflected in the content of the domain, since in case of failure to indicate such an object, the court may refuse to satisfy the claim , because the domain itself as an object does not receive legal protection.It has been established that the out-of-court procedure for resolving domain disputes is a convenient mechanism for the prompt protection of rights to a trademark that is displayed in someone else’s domain name without the right holder’s permission and thereby creates confusion with the right holder’s trademark, providing undue influence on consumers.It has been established that the reason for the occurrence of domain disputes is: the domain name is identical or deceptively similar to the trademark to which the plaintiff has intellectual property rights; the owner of the domain name has no rights or legal interests in the domain name; such domain name is registered or used in bad faith.It has been proven that when resolving domain disputes, special methods of protecting domain name rights are used – re-delegating domain name rights to the plaintiff or canceling domain name registration.It has been established that the judicial procedure for resolving domain disputes is universal and can be applied to the protection of rights to any object of intellectual property rights that can be reflected in a domain name (it concerns not only trademarks, but also commercial names, geographical indications, copyright objects, etc.). It is justified that such an approach is expedient to apply in relation to the out-of- court procedure for resolving domain name disputes, however, the relevant provisions must be approved by ICANN, making appropriate changes to Uniform Domain Name Dispute Resolution Policy.

Australian domain name registrations

Today, with the advancement of new technology, every person wants to have access cyber world. To navigate through this vast global collection of inter contennected computer networks (the internet), the domain name system (DNS) was invented. With the globalization and commercialization of the internet, domain names have taken on a new significance as business identifiers. Domain names are now highly visible in real space as well - showing up a television commercials, billboards, magazine ads, and event the side of buses. The value attached to domain names makes it lucrative for cyber criminals to indulge in domain name infringements and the global nature and easier and inexpensive procedure for registering domain names further facilitates domain name infringements. Thus we will discuss about domain name and trade dispute in detail.

In the early days of the Internet domain name system, there was little to no regulation in North America (or indeed any common law countries) specifically to address disputes that rapidly arose between trademark holders and domain name registrants. The earliest disputes, in the mid to late 1990s, typically involved domain name registrants who registered domain names corresponding with others’ trademarks in the hopes of either extorting money to sell the names (to the markholder or a competitor) or of using the domain to host a criticism, commentary or gripe site. Other uses also rapidly developed, including unauthorized fansites and political commentary sites. Without a clear set of regulatory principles to deal with these scenarios, it fell to trademark law to operate as the main regulatory matrix for resolving these online disputes. In some senses traditional trademark actions (for trademark infringement and dilution) were an obvious and well-suited regulatory avenue because the aim of trademark law is to protect valuable marks against activities likely to cause consumer confusion (infringement) or to blur or tarnish the mark (dilution). However, trademark law was not necessarily well suited to all types of domain name disputes, including situations where the domain name was not, strictly speaking, a trademark. Cases involving personal names and culturally/geographically significant terms were obvious examples. In 1999, the U.S. Congress enacted the Anti-Cybersquatting Consumer Protection Act (the ACPA), and the Internet Corporation for Assigned Names and Numbers (ICANN) adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) to deal with cases of cybersquatting—registering a domain name corresponding with another’s trademark with a bad faith intent to profit. However, like trademark law, both of these initiatives were premised on the existence of a valid trademark as the basis of a complaint. Thus, the law of domain names in North America, as at the ICANN level, is really more or less traditional trademark law with the addition of sui generis anti-cybersquatting provisions, also, for the most part, premised on the protection of trademarks. This chapter outlines these regulations and identifies particular kinds of domain name disputes which are not particularly effectively addressed under the current regulatory paradigm.

In Hong Kong, domain name disputes are governed by a policy that is heavily influenced by that of the US-based Corporation for Assigned Names and Numbers (‘ICANN’), which is designed to protect interests of some trademark owners at the expense of some domain name registrants. The root cause of Hong Kong’s adherence to US Domain Name Dispute Resolution Policy lies in the physical architecture of the domain name system itself, which is US-controlled. Hong Kong may improve protection for domain name registrants by amending the Hong Kong Domain Name Dispute Resolution Policy to make it more registrant-friendly than it currently is. In the longer run, however, Hong Kong’s ultimate power to decide on its own domain name dispute policy may involve moving away from the superior authority of the A root. A concurrent and less drastic step to improve the situation would be to clarify the ability of domain name registrants to register their domain names under trademark law.

Domain names are simplified internet addresses which provide a shorthand way to connect to webpages on the internet. The exponential increase in the use of the internet has led to a growing number of disputes relating to the registration and use of domain names. This has also led to the development of legal and quasi‐legal rules relating to the management of domain names and domain name disputes. The Uniform Domain Name Dispute Resolution Policy (“UDRP”), which was implemented in 1999, provides the international legal framework for the resolution of domain name disputes concerning generic top‐level domains (“gTLDs”), such as “.com”. National authorities provide corresponding policies for the resolution of domain name disputes concerning country code top‐level domains (“ccTLDs”), such as “.au”. The relevant national policy governing .au domain name disputes is the .au Dispute Resolution Policy (“auDRP”), which came into force in 2002. Both the auDRP and UDRP have proven to be an effective mechanism for the quicker and cheaper resolution of domain name disputes. While there has been considerable academic discourse on the UDRP, there has been very little commentary written on the auDRP. The aim of this paper is to fill the gap in knowledge on the auDRP by providing a critical and comparative review of key decisions under both the international and Australian domain name policies.