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Perhaps no other area of Cyber law conflict has attracted
as much attention as the various battles for domain names
on the Internet. The so-called "dot.com" registration
is administered by an American business known as Network Solutions.
Network Solutions is a public, for profit, corporation that
also oversees the allocation of the suffixes "dot.net",
"dot.org" and "dot.edu". Many of the battles
play out as epic struggles between "David" and "Goliath".
Making matters even more interesting, some battles involve
long time holders of a domain name against trademark holders.
In most other jurisdictions, the allocation of Internet names
is the responsibility of a non-profit entity or government
agency. The agency seized with this task is more likely to
be the product of chance evolution, rather than any significant
regulatory aforethought. Canada is a case in point. The "dot.ca"
registration system in Canada is administered by the Canadian
Name Domain Name Consultative Committee, a non-profit entity.
In fact, until recent proposed changes are implemented, there
remains no charge for registering a "dot.ca" domain
name.
Whether or not the role is handled by a non-profit entity
or a public corporation, it is clear that these agencies are
required to play a quasi-judicial role from time to time.
The decision to allocate or revoke a registration of a domain
name is clearly more than simply an administrative task. In
such an exercise, a compelling case can be made that the agency
must adhere to the rules of natural justice, or face judicial
censure and possibly damages in a civil law suit.
Recognizing the role it sometimes is required to play, Network
Solutions states at its web site that it advocates "a
governance structure within a legal framework to help safeguard
critical operations of the Internet". Presently, Network
Solutions takes a name out of service until the parties resolve
their differences, whether through litigation, arbitration
or negotiation. Thus a legitimate rights holder to a domain
name is effectively unable to obtain interim relief pending
judicial resolution.
The problems associated with resolving domain name disputes
has been recognized by the World Intellectual Property Organization,
a United Nations agency (WIPO). WIPO established the Arbitration
and Mediation Center in 1994 to deal with commercial disputes.
As part of its mandate, WIPO has developed the Uniform Domain
Name Dispute Resolution Policy for the resolution of domain
name disputes. The Center currently provides services in respect
of the following suffixes: .com, .net, .org, .ac, .io, .nu,
.sh, .tv and .ws. The Policy was adopted in October of last
year by the Internet Corporation for Assigned Names and Numbers
(ICANN), the non-profit entity that is assuming the administration
of the Internet's addressing systems.
The Arbitration and Mediation Center recently ruled in favor
of actress Julia Roberts in a dispute with Russell Boyd over
the domain site, www.juliaroberts.com. The Center ruled that
Ms. Roberts has common law trademark rights to the name and
that the site was "identical or confusingly similar"
with her name. Further, the site was registered in "bad
faith", citing the fact that Mr. Boyd had registered
the names of other celebrities. As well, the domain site was
for sale on eBay Inc., an Internet auction service.
The arbitration system does not preclude access to the courts,
likely a concession to American interests. However, given
the potential multi-jurisdictional aspect of a dispute, parties
may be loath to litigate the matter in addition to arbitrating
it. Further, as with any administrative tribunal, the Center
brings a greater level of expertise than would be found in
the Courts. As the Center gains acceptance, it is likely that
a universal and coherent approach to settling disputes over
domain names will emerge.
Douglas
H. Hancock, B.A., LLB., is a partner with the law firm of
Daigle & Hancock
and is presently working on an LL.M in Information Technology.
He practices
corporate and commercial law.
Please visit him at http://www.daiglehancock.com
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