Class13jan2011post

regulation of internet commerce class thirteen - january 20, 2011 professor michael geist university of ottawa, faculty of law

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9:00 - 4:00
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Include only your student number
I will post student numbers of exams received on course site
No word length (though two q’s have word limit). Should not take 7 hours

Tech Law Internship Program
One day/week in tech law environment - law firms, gov’t department, tech company, NGO
Deadline - January 21, 2011

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
Contractual rights, rarely treated as a property right
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 (vodka.com - $3m)
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)

What’s in a Name?
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

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

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

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

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
Exhaustive list of bad faith indicia:
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

Key CDRP Provisions Legitimate Interest Prong
Complainant must also affirmatively show that the registrant has no legitimate interest

Key CDRP Provisions Legitimate Interest Prong
If 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

Class13jan2011post

by mgeist on Jan 20, 2011

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