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Class10jan1613
 

Class10jan1613

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    Class10jan1613 Class10jan1613 Presentation Transcript

    • regulation of internet commerce class ten - january 16, 2013 professor michael geist university of ottawa, faculty of law
    • Friday’s Class• Shopify, 126 York Street, Byward Market (east of Dalhousie, above Market Organics store)
    • domain name system - names Root server (mirrored, TLD info, ICANN control, USG) Registries (gTLDs, ccTLDs) Registrars (single, competitive) Registrants (domain name holders) • Hierarchical • Authoritative
    • domain name system - root server Root server (mirrored, TLD info, ICANN control) Registries (gTLDs, ccTLDs) Registrars (single, competitive) Registrants (domain name holders)
    • domain name system - root server• “ruling the root” - root server is the single point of information• Server located in Virginia, USA• Server is mirrored by many other servers worldwide• Very small database - list of recognized domains (gTLDs, ccTLDs) and their registries (admin contacts)• Doesn’t point to individual domain name registrations• Key issues: • How do you get in the database? • How do get taken out of the database? • How do you change the contents of the database? • What happens if more than one root?
    • domain name system - registries Root server (mirrored, TLD info, ICANN control) Registries (gTLDs, ccTLDs) Registrars (single, competitive) Registrants (domain name holders)
    • domain name system - registries• Several responsibilities: • Technical • Registration • Resolution • Policy • How can you get a domain? • What can you do with a domain? • How do you lose a domain?• Many different models - for profit, non-profit, gov’t run, academic-run, etc.• Key issues: • How do you get to be a registry? • What gives registries the right to operate and set policy? • ICANN, government relationships
    • domain name system - registrars Root server (mirrored, TLD info, ICANN control) Registries (gTLDs, ccTLDs) Registrars (single, competitive) Registrants (domain name holders)
    • domain name system - registrars• Many TLDs employ competitive registrar system • Company that registers domain names • Typically contractually “regulated” by registry • “Purchases” domain at wholesale price from registry; free to resell to the public at any price • Maintains direct relationship with registrant • Subjects registrant to domain name policies via contract• Hundreds of domain name registrars for gTLDs• ccTLDs employ various models (.ca - competitive model; .il - single registrar/registry)• Registrars employ different biz models - direct sale, resellers• Many of the innovative business practices in the industry are driven by RARs
    • domain name system - registrants Root server (mirrored, TLD info, ICANN control) Registries (gTLDs, ccTLDs) Registrars (single, competitive) Registrants (domain name holders)
    • domain name system - registrants• Individuals, companies, etc. who hold rights to domain name• RANTs determine what IP address resolves to that domain and therefore the content associated with the domain• Renewable contract• Primary Market – First come, first serve• Secondary Market – Auction• May be subject to registration restrictions - i.e.. presence requirements, limit on number of domains, restricted names
    • big business• The business.. • Primary Market • Registry - $7/domain wholesale/year • Registrar - $20/domain retail/year • Secondary Market • Single domain - potentially worth millions • Lapsed domains - thousands per domain • Value of is asset based on traffic/ad revenue/perceived value
    • the issues• ICANN oversight/USG Involvement• WHOIS information - what is displayed• Internationalized domains• Domain name dispute resolution• Creation of new TLDs• Relationship between ICANN and various interests (registrants, registrars, TLDs, RIRs)
    • Domain Name Disputes• Who owns a dot-ca or a dot-com?• First come, first served• Issue - only one domain per name & limited restrictions on registration (CPR in Canada; none for dot-coms)• United Airlines, United Van Lines, United Telephone, United Bank
    • Challenging Dot-coms• Early days -- NSI dispute policies • Freezing domains • Competing global trademarks• Transfer from NSI to ICANN• ICANN Uniform Dispute Resolution Process (UDRP) follows WIPO-led process• The Courts/Anticybersquatting Act (U.S.)
    • ICANN’s Uniform Dispute Resolution Policy (UDRP)• Domain name disputes are frequently cross-border• Need for speed, accessibility, global scope• ICANN UDRP – External providers - WIPO, NAF, ADNDRC, etc. – Bad Faith Domain Name Registrations – 3 Months and $1 - 3,000
    • ICANN’s Uniform Dispute Resolution Policy (UDRP)Complainant must prove…• domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights• no rights or legitimate interests in respect of the domain name• domain name has been registered and is being used in bad faith
    • ICANN’s Uniform Dispute Resolution Policy (UDRP)Bad Faith includes…• Attempt to sell, lease, etc. the domain• Prevent registration if there is a pattern of such behaviour• Disrupt competitor’s business• Attract, for commercial gain, visitors to your site via confusion
    • ICANN’s Uniform Dispute Resolution Policy (UDRP)Legitimate interest includes…• Bona fide offering of goods or services• Commonly known as domain• Legitimate non-commercial use provided no attempt to obtain commercial gain via confusion
    • ICANN’s Uniform Dispute Resolution Policy (UDRP)• Step-by-step process• Complainant launches claim with arb. provider• Registrant opportunity to respond and decide whether one or three member panel• Arbitration provider assigns panelist(s)• Panelist(s) render decision based on evidence submitted
    • The Development of the CDRP Influences• ICANN UDRP• Canadian court experience• Desire for a Canadian-specific approach (language, CPR)• ccTLD considerations
    • The Development of the CDRP Timeline• April 2000 - first public comment document released• August 2000 - first report released• September 2000 - first draft rules released for comment• November 2000 - CIRA changeover• January 2001 - report on draft rules consultation• June 2001 - CIRA elections• September 2001 - new CDRP released for comment• October 2001 - board approves CDRP
    • Key CDRP Provisions Launching a Claim• Complainant (who meets CIRA Canadian Presence Requirements) required to prove: – Registrant’s .ca domain name is Confusingly Similar to a Mark in which the Complainant has Rights – Registrant has no legitimate interest in the domain – Registrant has registered the domain name in bad faith
    • Key CDRP Provisions Confusing Similarity Prong• Confusingly similar if resembles mark in appearance, sound, or ideas such that likely to be mistaken for mark• Mark based largely on Trademark Act definition – Can be registered or unregistered• Rights requires use in Canada
    • Key CDRP Provisions Bad Faith Prong• Bad faith indicia include: – Registered or acquired domain primarily for purpose of resale, lease, etc. to Complainant or Complainant’s competitor – Registered or acquired domain primarily to prevent Complainant from registering and engaged in pattern of such activity – Registered or acquired domain primarily to disrupt Complainant’s business and Registrant & Complainant are competitors – Registered to intentionally attempted to attract, for commercial gain, Internet users to the Registrant’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s Mark as to the source, sponsorship, affiliation, or endorsement of the Registrant’s website or location or of a product or service on the Registrant’s website or location
    • Key CDRP Provisions Legitimate Interest ProngComplainant must also affirmatively show that the registrant has no legitimate interest
    • Key CDRP Provisions Legitimate Interest ProngIf Confusion, Bad Faith and No Legitimate Interest are proven, onus falls to Registrant to prove legitimate interest :• Registrant has rights in the Mark• Good faith commercial use - domain descriptive or generic• Good faith non-commercial use including news reporting and criticism• Legal name of registrant• Geographical location of Registrant’s non-commercial activity or place of business
    • Key CDRP Provisions Canadian Issues• CDRP only open to those who meet Canadian Presence Requirements• Canadian law governs all disputes• Actions brought in either English or French
    • Key CDRP Provisions Of Note…• Reverse Hijacking clause -- up to $5000 in damages• Domains can be transferred or cancelled – Typically transferred, rarely cancelled• 60 days to implement• Three member panels for all contested cases• Two dispute resolution providers - BCIAC and Resolution Canada