CEU eTD Collection Hungary 9. Nadorutca 1051 Budapest, University Central European PROFESSORS: György Boytha, Dr. and VladimirPavic, Dr. Property Law COURSE: International and European Intellectual LL.M. SHORT THESIS COMPARATIVE ANALYSIS OF THELEGISLATION T RADEMARK AND OF THE byKasybekova Kanykei K D YRGYZ OMAIN © Central © Central European University March 29,2010 R N EPUBLIC AME I NTERFACE : CEU eTD Collection through all this time. allthis through go tomy Moot Team Friends for sharing their knowledge and ideasandfor theirinspiration especially Asanbaeva for andinvaluable her friendship, all Dinara support care.Special thanks with regard to cases on domain names, and Aisulu Chubarova for her help. LLC for their help in providing all andrelevantinformation needed on Kyrgyzstan, specifically Consult” “Atan and LLC & Partners” “Britner thank to like would I help. their for Department my express deepgratitude G.Boythato supervisor Professor late Legal the and to Studies I wouldlike my tothank Mom and Dadfor their love endless andIwouldlikesupport. to I would like to commendmy for mates group for being nearme and friends for their A CKNOWLEDGEMENT ii CEU eTD Collection efficientlegislative framework regulating and trademark domain name in disputes .kg zone. establish to arenecessary countries of lawsother andcaselaw UDRP, basedon and policies settlement of such Therefore,disputes. amendments and adoption of legalnew guidelines acts, for Assigned Names and Numbers. Uniformthrough Domain Resolution NameDispute by Policy elaborated Internet Corporation trademark and domain name resolutiondisputes have been developed in U.S.legislation the and for mechanisms efficient The variations. numerous its and “cybersquatting” as phenomenon andclasses of services.goods features resulted These in distinguishing emergence of such law such features as territoriality fordifferent similar trademarksand specificity co-exist allowing trademark traditional from differ names domain of nature global and address Internet asan characters alphanumeric string of of each uniqueness basis. Yet a first-come-first-served on are registered isthe same.Both Protocol addresses Internet representing through function name law. serveparticular, trademark as Trademarks a source identifier of of whilegoods, domain the Internet has brought numerous challenges to the intellectual property legislation, and in and legislation, property intellectual the to challenges numerous brought has Internet The Kyrgyz laws trademarkregulating and domain name are interface ill-equipped for A BSTRACT iii CEU eTD Collection B C C C D C I NTRODUCTION IBLIOGRAPHY ONCLUSION HAPTER HAPTER HAPTER OMAIN TLD: Selected Recommendations...... 45 3.2. Framework for EfficientTrademarks and Domain Names Dispute Resolution in .kg Regulatory Framework...... 35 3.1. Trademarks & Domain Names Dispute Resolution in .kg TLD: Legislative and eouin...... 31 Resolution 2.4. European and Community Approach to Trademark vs.Domain Dispute Names 2.3. Russian Approach to Trademark vs. Domain Names Dispute ...... 26 Resolution 2.2. U.S. Approach to Trademarks vs. Domain Names Dispute Resolution...... 22 2.1. Dispute Resolution under Uniform Domain Name Dispute Resolution Policy...... 17 1.3. Conflicts between Trademark Law and Domain Names...... 13 1.2. Internet and Domain Name System...... 9 1.1. Trademark Law: Regulation under International and Kyrgyz Laws...... 4 N III. II. I. AMES T A HE T ...... 48 PPROACHES OF PPROACHES RADEMARKS ...... 52 ...... 1 C ...... 4 URRENT L & EGAL AND T D RADEMARK VS OMAIN T ABLE OF R N EGULATORY AMES . D I iv NTERFACE UNDER OMAIN C ONTENTS F RAMEWORK FOR RAMEWORK N AME R ESOLUTION K YRGYZSTANI T RADEMARKS AND ...... 17 L AWS ...... 35 CEU eTD Collection domain name disputes started to first appear at the late 1990s, and that time gave rise tonew type owners and domain name holders for the right to own particular domain name. Such type of trademarks. However, this brought clashes between the real world and virtual one. to similar was which asset, intangible an became names Domain individualization. for providing hence ortheir of Emergence of words combination, system name registration domain allowed name. is domain the to register market on the Internet a to“establish” One oftheways marketingfor of and companies, the hasfoundthus special popularity among trademark owners. andtheir establish goods markets. The on the is Internetbe an consideredto indispensable tool it of types proved atthe sameviolations, be timecould huge to marketfor businessesthat spread befor various source is consideredthe to Internet though the Even rights. property intellectual levels. national internationalbe on regulated as issuesintellectual as to on well issuesproperty to with regard new the brought Internet the of development the However, owners. property intellectual of rights beprotected, to distinguished,gainto international profit. Different and national laws the protect inventionsregister their and patents, get their and in trademarks service marks, tobe order entrepreneurs getprofit to andnumber of growing consumers. Entrepreneurs aretrying to for possibilities huge brought has Internet the of use Active world. the over all people terms of speed and scale.the sameThe endlessis happening possibilities with the Internet. of the Internet The Internet communication is a special attract means moreof communication in The most common court proceedings relating to the Internet are between between are trademark theInternet to proceedings relating commonmost court The The development of the Internet accompanied some problems for the owners of The conceptof isintellectual property and very popular in important modernthe world, I NTRODUCTION 1 CEU eTD Collection for Assigned Namesandwhich Numbers is (“ICANN”), an organization managing the global into the basics of trademark law and its regulation in the Kyrgyz Republic. between trademarksthe and domain names. Inaddition, Chapter the provides brief introduction of ittrademarksfeatures appear andindicates Also, names. thecontroversies that domain particularly, trademarkwork, present anddomain resolution. name dispute domain names.Theinterface of andtrademark domain namesin isgeneral main focus of the and trademarks of field inthe framework legislative efficient establishing for recommendations current legislativeframework is presented. The is work donein order to come upwith possible the of Analysis amendments. some have to need interface domain and trademark regulating wereand covered .org under this policy. Domain Name Dispute Resolutions Policy (“UDRP”) was adopted, and TLDs such as .com,Uniform was issue atLater, solve basisofthesethe on recommendations, that thehigh peak. the .net, recommendations on domain name dispute for resolution top level domain names in order to rendering various types of decision, often each which contradicted orwereunfounded.other were courts resolution the of dispute such cases,therefore, the regarding specific legislation no refer but ridiculous, courts.At tothe issues that timecybersquatting whenfirst was there arose owners werewillingbuy to domainthe names, especially pricethe when was requested too itall However,notto thetrademarkfamous aim with the trademark selling owner. of trademark of namely activity, whenone “entrepreneurial” domain“cybersquatting” registered name as Chapter II is specifically devoted to the UDRP that was approved II is UDRP thatCorporationChapter to the specifically devoted byInternet Chapter I of this work explains the operation of domain name system as well as main of newin country, islaws Kyrgyz the Republic Sincethe this the relatively topic In the1997 World Organization Intellectual developed(“WIPO”)Property 2 CEU eTD Collection interface in the Kyrgyz Republic with the analysis of legislature, and emerging caseand emerging law. legislature, analysis of the with in Kyrgyzinterface Republic the and names described. dispute resolution domain are techniques service providers. In this Chapter the U.S. legislative, Russian judiciary, and European trademark and domainnames, and itis administered by several ICANN-accredited resolution dispute domain toresolve name drafter system. between UDRPwasspecifically The disputes trademark Finally, Chapter III describes III thename Finally, situation of work trademark domainthe with and Chapter 3 CEU eTD Collection Oxford University Press 2007) (hereinafter, “M originated fromoriginated and, sometimes in connection with previous,the is what thegoodsquality. identify the sourceand marksto represent started free business, of with creation later the development, further of goods. Hence, guildthe members” it was and still an productsincentive created generate to of “to quality a higher in maintain by order monopolies is crucial tomight goods whose be werepartof As craftsmen of alower quality.existenceguilds, latter’s the know where the goods later started sign marks to beusedasdifferentiation artisanof from one work the of another, are religion.” place. started from the time when the trade started to develop and circulation of good started to take goods andgoods services Laws andKyrgyz underInternational Law:Regulation Trademark 1.1. helpunderstand to anddemonstrate to interfacethe between trademarksthe anddomainnames. World WideWeb and the Internet domain name system is Thesebasicrequired. outlines should on the general the picture In addition, legal from of issues perspective. trademark the regulation 6 5 4 3 Yuhikakued. 1999) available at < http://iip.or.jp/translation/ono/ch2.pdf > (last visited in March, 2010). 2 1 H S goods. as bereferred shall goods” and “services text the throughout Hereinafter Ibid. Ibid. Ibid C HOEN ECTOR HAPTER . 2 It is considered that “the history of marks is as old as the histories of mankind and mankind of histories is the as asold marks of history “the that isIt considered O The most important feature of trademarks is to identify and distinguish between the between distinguish and identify is to trademarks of feature important most The on information basic the provide to and with begin to necessary is it point starting a As M NO 3 AC proving the of forownership rights, purposes the While beginningserving the at , O Q VERVIEW OF VERVIEW UEEN I. T 1 ET AL evolvementcoming Itis from various sources. trademarks of considered that 4 FOR HE , but also not to be an example of not meeting the guild’s standards. . , J C APANESE C ONTEMPORARY T URRENT RADEMARKS AND T RADEMARK I AC L NTELLECTUAL Q EGAL AND UEEN L AW , 4 , Section 1 Section, on History of Trademark Law at 1-2 (second C ONTEMPORARY P ROPERTY D OMAIN R EGULATORY : L IP”). AW AND N AMES P OLICY 542-43(New York: F RAMEWORK 6 5 With CEU eTD Collection 8 service”. or product industry, particular a to specific limited are protections that idea to“the refers latter the while operates”), it which to within jurisdiction the thewithin protected general spherecharacteristics”: domesticity and specificity. of Theformer refers to thebusiness territoriality (“the trademark will454 (Oxford only University be Press 2002), stating that the rights inherent in trademarks “are limited by withintwo defining which the goods or services are traded – that is, the protection is originated under the control under for responsible their thecontrol originated of a single quality” undertaking not,is are similaroritems andit the “to had very guaranteethat bearing trademark of importance deception, so making “the perception of paramount” consumers the makingof “the perception so deception, to be a mainnotits actual production cost. Yet the mainfunction function of trademarks, as itmight be also considered and product the of quality the and name the for pay consumers usually cloth, the with example in other fields, is the protection of consumers from confusion and 11 the geographical territory where protection has been obtained” (at p.686). (at obtained” been has protection where territory geographical the to is limited a trademark under available protection of scope “the that refers author Moreover, territory. particular beyond theterritory whichin it[trademark] is registered”, thus limiting the protectionof the trademark to a C 10 9 available at< http://altlaw.org/v1/cases/413286 > (last visited in March, 2010). solely according to that country’s statutory scheme”, Person’s Co.v. Christman, 900 F.2d 1565 (Fed.Cir.1990), 7 trademark. Namely,product. they goodwill the represent of is companythe that working behind the given the with associates consumer the which goods, of quality the defining of function the have legalunified protect system to trademarks withinits borders. another’s markdeveloped,also whereascivil who was gradually protection against those wouldestablished use withoutfraudcounterfeitinglaws, and about this time laws werecriminal protecting special trademarks permission. Today virtually each country of the world has its own M Thebasis of trademark law is territorialitythe principle, according to which“trademark rights exist in each country Ibid ONTEMPORARY Ibid Ibid AC . , at 666. , at 540. Q UEEN Apart from Apart identifying task the of and source the distinguishing of goods, trademarks free Relatingof developmentbusiness and to the forgery, of out issuesthe of 8 , Moreover, trademarks are considered to be as profitable investment tool investment beas profitable to considered are trademarks Moreover, C ONTEMPORARY IP, at 557, where it is said that even Paris Convention does not provide “protection extending IP, at 544. at 5 7 See also 10 Y , regardless whether goods EE F EN See also See L IM 11 , C . YBERSPACE , M 9 AC , as for Q UEEN L AW , CEU eTD Collection (hereinafter “Madrid Agreement “Madrid (hereinafter and obtain registrationin the home state, and afterwards apply forthe international registration to WIPO. Madrid Agreement is to provide “simplified mechanism forfiling trademark applications. The applicants have to filehttp://www.wipo.int/madrid/en/legal_texts/trtdocs_wo015.html > (last visited in March, 2010). The main goal of 13 Kyrgyzstan is a Law of Kyrgyzthe Republic “OnTrademarks, Marks Service andAppellations Regulations, Directives. e.g. European Community obligations, the under bound addition in are Union European the of countries the treaties, international by should benoted whilethat legal trademark in framework Kyrgyzstan was beingshaped mostly It to international obligations. legislation country’s the compliance the of fostered trademark the treaties property intellectual international other the under as well obligations accession as 15 http://www.wto.org/english/thewto_e/countries_e/kyrgyz_republic_e.htm > (last visited in March, 2010). 14 C International Registration of Marks, 1989 (hereinafter“Madrid Protocol Agreement was aimed at creating more simple procedure for trademark application filings. application trademark for procedure simple more creating at aimed was Agreement Convention http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html > (last visited in March, 2010). (hereinafter “Paris 12 Intellectual Property (“TRIPS Agreement”).As Kyrgyzstan acceded WTOin 1998 protection intellectual of property adoptingthrough Agreementon Trade –Related Aspects of itwas incorporatedinto Worldthe TradeOrganization’snegotiations, (“WTO”) which promoted andin becauseof early the becomethat more andmoresignificant 1990s started to economically lawsof development in trademark With countries. lapse the of those timeproperty intellectual many to accede started it internationalcountries instruments, these influenced the Property Industrial of Protection the for Convention Paris of adoption of period the to back dates M Starting from December 20,1998 Kyrgyzstan is a member of WTO. See, < ONTEMPORARY Madrid Agreementconcerning International the Registration offull Marks, textavailable is at: < Paris ConventionforProtectionthe ofIndustrial Property 1883,fulltext isavailable< at: AC Q The main law protection regulatingand trademarks’ registration, usein territory the of Trademark law in general on international level started to develop from XIX century; it century; XIX from develop to started level international on general in law Trademark UEEN 12 ”). and RegistrationAgreementConcerning MarksInternational of Madrid the , See also See C ONTEMPORARY IP, at558. M AC Q UEEN IP, at 563. IP, ”). , C ONTEMPORARY See also , Protocol Relating to the Madrid Agreement Concerning the Concerning Agreement Madrid the to Relating Protocol , IP, at25-7, 557. 6 ”). The Madrid Protocol as well asMadrid 15 See also, See M AC 13 14 . Since Q , this , UEEN , CEU eTD Collection 21 20 Service. ofthe version shortened first to as State Patent Service of the Kyrgyz Republic, but still the community referring to it as Kyrgyzpatent, the very 19 18 work. in this presented is what and version available internet the between be found can difference Therefore, Law. Trademark ofthe text Russian the fully express not does version the law is available on < http://patent.kg/en/laws/trademark > (last visited in March, 2010), however, translated 17 16 confusingly similar with trademarkthe homogenous of goods,third party will be infringing themark goodsbearing trademark or or the in way or uses atrademark sales, stores other procedures. i.e.as long applicable is protection, tothe lawsandestablished protection according renewed as prolonged for continuously years, another ten thus providing almost unlimited time for thirdby its parties. other use means that the trademark owner “shall have exclusive the right touseits trademark” and prohibit individuals.” or entities services of one legal individualsentities from or homogenous goodsand legal services of other andisand distinguish“atrademark, goods adesignation to providing that trademark capable This law encompasses of Places (hereinafter of Origin Goods” whichof “Trademarkin Law”), was adopted 1998. the definition of the trademark expressing the main functions of the to State to State Intellectual “Kyrgyzpatent”). Property Service (hereinafter Kyrgyzthe Republic. of laws the under allowed not is sound and scent of registration however, thereof, combination others or combinations thereof, as well as trademark can be registered in any color or Article 15 of the Trademark Law. Trademark of the 15 Article Article 3 of the Trademark Law. It should noted that before 2009 State Intellectual Property Service was referred was Service Property Intellectual State 2009 before that noted should It Law. Trademark 3 ofthe Article Article 2 of the Trademark Law. Trademarks shall also hereinafter include service marks. Translated version of version Translated marks. service include hereinafter also shall Trademarks Law. Trademark 2of the Article Dated January 14, 1998 (as amended on February 27, 2003). Ibid, Ibid . Article 3. Article If any third party without any authorization manufactures, uses, imports, If any uses,imports, party sale, for any manufactures, offers without third authorization 21 18 In ordertoregister onehastofile trademark anexclusive anapplication 17 One can register trademark in words, three-dimensional, graphic and graphic three-dimensional, words, in trademark register can One 20 This protection is granted for a period of ten years, which can be can which years, ten of a period for is granted protection This 7 19 trademark exclusive The 16 CEU eTD Collection No. 26(hereinafter“Procedure as an Address Internetin approved byResolutionof Governmentthe of Kyrgyzthe Republic onJanuary 31, 2007, 24 selling). International, L.P. v. Toeppen, 141 F.3d 1316, 1325 (9 trademark dilution, of purposes mere the registration “for namely, of a domain trademark, of beuse name to without considered is more name is domain a not as typical commercial oftrademark use” registration (Panavisionmere H of the of the Kyrgyz Republic dated April 13, 2004, No. 19. Unfair CompetitionCases approvedby Resolutionof Ministrythe forEconomic Development, Industry and Trade actions that constitute unfair competition. The most relevant to the issue of trademark and 28 February 10, 2010). 27 26 25 23 22 lossesand infringement for compensate trademark owner incurred. to theunlawfullya person registered hastoceasethe trademark, trademark the using infringementof rights.trademark trademark or mark confusingly similar with the trademark in the Internet. owner’s rights. as trademark owner an in address isdeemed Internet the also tobeinfringement of the trademark pursuantto which useunauthorized of a markidentical orconfusingly similar with a mark of the rights. owner’s trademark entails administrative liability in the form of fine. of form in the liability administrative entails Development and Protection of Competition” (the “Anti-Monopoly Law “Anti-Monopoly (the of Competition” andProtection Development for the public works between term of 180 and 240hours. of treble by damagesimposed courtinmonetary decision of the inthe terms or (c) kind; or liability for illegal use of trademark in the form of (a) fine; (b) triple ayip, a penalty in the form Procedure on Usage of Trademarks, Service Marks, Appellations of Places of Origin of Goods, and Trade Names Trade and of Goods, of Origin ofPlaces Appellations Marks, Service Trademarks, of Usage on Procedure Dated April 15, 1994, No. 1487-XII (as amended on August 1, 2003). Article 341 of Administrativethe Liability Code of Kyrgyzthe Republic dated August 4, 1998 (as amended on Article 1113 of the Civil Code of Kyrgyz the Republic datedJanuary 5, 1998(as amended onJuly 17, 2009). Law. Trademark of the 41 Article Law. Trademark of 3 the Article ANDBOOK Ibid . See Kyrgyz laws provide for civil, administrative and criminal liabilities in case of in case liabilities criminal and administrative civil, for provide laws Kyrgyz Furthermore, the Law of the Kyrgyz Republic “On Restriction of Monopolistic Activity, Monopolistic of Restriction “On Republic Kyrgyz the of Law the Furthermore, 161 also (TorstenBettinger , E 23 The Trademark Law further refers to special rules regulating the use of a RIC M ACRAMALLA ”). 22 Even more, the Trademark Law also contains a special clause ed., Oxford University Press 2005). (It should be noted that in UK and US the , 25 Canada, Thus, if a person registers domain name identical or similar identical name or domain registers Thus, if a person in D th Cir.1998)); this registration should be with the intention of OMAIN 8 27 The Kyrgyzlawsprovidecriminal for also N AME L AW AND See also See , Procedure for Consideration of 26 P RACTICE Illegal use of trademark 24 ”) 28 : listof a provides A N I NTERNATIONAL CEU eTD Collection http://austlii.org/austlii/guide/current/20030315--2.html > (last visited March,in 2010). Locator (“URL isEach “address”,whichis information aunique page of aUniform called Resource assigned world. users from the of any part Internet the by other accessed 34 (last visited in March, 2010). etc. engines, use search communicate with or to each other, rooms,images, to “shops”, services, chat video news, radio, access to Internet the of Millions people use Web pages. different located on are that documents 1.2. Internet and Domain Name System their damage reputation. entities or to business decency, andpractices, fairness may and reasonableness, haveor loss caused to competingother Law,customary business provisionsthe of Anti-Monopoly the activities, which contradict 33 32 31 30 in independent business activities, and associations thereof with orwithout formation of a legal entity.production, sale or purchase of goods, collective, cooperative, joint-stock ,state, public or other enterprises engaged 29 entities byaneconomic undertaken any actions activity trade isThe unfaira competitor. definedby of Anti-Monopoly Law as competition the enterprises, industrial respect (c)actions use of or causingconfusion to trademark; goods with or place of production, properties, suitability for application qualityor goods; of (b) unauthorized manner to acharacter, and a consumer with interfacenamerespect of are(a)confusion domain works, let’sworks, look at a typical URL: http://www.ceu.hu/studentlife/,http where ACLU v.Reno, 929 F.Supp.824 (E.D.Pa. 1996), aff’d,521 U.S.844 (1997). Pursuant to Article 4 of the Anti-Monopoly Law economic entity are entities engaged in economic activity of See also, See Ibid. Ibid. Marshall Brain, Domain Name System (“DNS”) is the system of global navigation within the Internet. the within navigation global of system is the (“DNS”) System Name Domain Internet is described as a global “network of networks”. “network aglobal isdescribedas Internet Australian Legal Information Institute, A Brief Guide to Using the Internet, ”). 34 How Domain Name Servers Work, This address is made up of several sections. To illustrate how the DNS how the illustrate To sections. several up of made is This address 31 Users can transmit pictures and sounds and this information can be can information this and sounds and pictures transmit can Users 9 available at< http://www.howstuffworks.com/dns.htm > 29 businessin gainingadvantages at aimed 32 30 Internet contains thousands of thousands contains Internet available at < indicates that this that indicates 33 CEU eTD Collection 36 Interface visited inMarch, 2010), at 374-375. (hereinafter, “Efroni, PeterAge”, K. Yu, ed., Praeger Publishers (2007), available at SSRN: < http://ssrn.com/abstract=957750 > (last Names and Trademark Rights address” (. designated ccTLD University. The Central European is to SLDreferring the Hungary, the isfile domain <.hu>is namethe ccTLDbelonging The , zone the . to <.com> in is top-level the TLD registry SLDregistered the the <.com>, , code top-level illustrativeindomains (ccTLDs).For purposes, name domainthe which can bedivided into two major generic categories: top-level domains (gTLDs) country- and Second Level andDomain (SLD), Third LevelDomain TLDsare (ThLD). top-levelthe domains web-site. desired the remember users to for the internetmake iteasier to developed Domain nameswerespecifically on Internet. the numbers, it is much simpler to learn and know the words which allow users to access typingthrough “numerical the “address,” web sites first, website: CEU the accessing options of two are there Thus, website. access university’s (10.120.021.01 27.99.679.93) or belongthat to , wewill befirstaddressed to uniquethe Protocol Internet numbers(IP) Names asDomains, Names as Marks: Issues Concerning the Interface Between InternetDomain > is the unique address of uniqueaddress> isthe of Central Furthermore,University.European when we >). 36 memorizinglatter,comparingDomain thereforenames to the represent in “Intellectual Property And Information Wealth: Issues And Practices In The Digital The In Practices And Issues Wealth: Information And Property in“Intellectual indicates that the page is found on the World Wide World the on found is page the that indicates 35 and secondly, through typing the “alphabetical the typing through secondly, and 10 Internet Domain Names and Trademark Rights > and only then we will be able to be able will we then only > and CEU eTD Collection P 43 2010). 42 visited in March, 2010). 41 http://icann.org/en/announcements/announcement-30sep09-en.htm#announcement > (last visited March,in 2010). 40 appropriate to its mission through bottom-up, consensus-based processes.” consensus-based 39 bottom-up, through mission its to appropriate of promotion Internet”; the of stability competition; operational achievementof “the of “broad representation preservation of include global Internet community”; functions ofthe and development One 2010). of “policiesMarch, 38 (last visited March,in 2010). is the 37 only body that controls administrationgTLD .int– is based organizations. international-treaty reservedfor Agencies andthe list Department Recognized Accrediting U.S. of Nationally of Education’s of the whereas the gTLD .edu isDNS. reserved for post-secondary institutions accredited by an agency on the More gTLDs .gov and .mil are reservedexclusively for the United government States informationandmilitary, .int. But not all of them are freely available to register in, e.g. the last four are of limitedabout purpose: ICANNInitially,in back 1980s seven gTLDs werenamely created, .net,.com, .gov, .org, .mil, and .edu is available at Affirmation of Commitments of September 30,2009. between ICANN and the DOC, which expired in August 2009, and now this JPA is replaced with since 1998. The MOU wasreplaced in 2006 by September Project Joint the Agreement(“JPA”) Memorandum of Memorandum of (“MOU Understanding system management, and root server system management. identifier Protocol space address Internet protocol company, for profitallocation, (IP) responsible assignment, generic (gTLD) and country code (ccTLD) Top Level Domain name RACTICE T A list of ccTLDs is available at (last visited in March, >(last (last visited in and (DNS) System Name Domain Internet the of aspects technical and policy the to manage formed was ICANN See See ORSTEN Affirmation of Commitments by the US Department of Commerce and ICANN < textthe of MOU at (last visited in March, 2010). As of today As of 20 today ICANN introduced gTLDs ICANN : A B N ETTINGER I NTERNATIONAL 37 is the organization that manages the global domain names system. It is a non- a is It system. names domain global the manages that organization the is , See also Structure and Organization of the Domain Name System, H note 43 on Structure and Organization of the DNS. ANDBOOK 17-35(Torsten Bettinger ed.,Oxford University Press 2005). ”) with the U.S. Department of Commerce (“DOC 11 41 252 ccTLDs and about 40 38 underICANNa hasbeenoperated 43 in D OMAIN 42 all over the world. the over all N AME L AW AND AW ”) 39 CEU eTD Collection http://www.iana.org/domains/root/delegation-guide/ > (last visited in March, 2010). 49 March, 2010). Establishing ccTLDs, available at < http://www.iana.org/procedures/cctld-establishment.html >(last visited in (Internet Assigned Numbers Authority) that is now subdivisionthe of ICANN.the decision making, meaning who will decide what policies would be applied to TLD, 48 March, 2010). Delegation), May 1999. More information is available at < http://www.icann.org/en/icp/icp-1.htm > (last visited in 47 the Horizon TLDs on Ellen Rony, W 46 community), travel global the (for .cat .travel (for the DNS"), Catalanthe linguisticin and directly cultural community). keywords and information contact their all manage and "store to registrants (for .tel community), management resources human international the (for .jobs devices), redelegation delegation and/or of ccTLDs with AssignedAuthority NumbersInternet (“IANA country country managers individual registrants on a first-come-first-served basis. The sponsoring organization (individual issued by TLDregistries.ICANN-approved Commercial sell registrars SLDsto requested license a on basisof the operate registrars Commercial commercial or registrars. governments of sponsorshipfrom emanating interested ina group creation such gTLD.of all notits of on canbe creation emergence new gTLDs time depends ICANN,butresultthe the 45 professional (for .pro and names), entities).personal (for .name museums), (for .museum activities), various (for .info 44 of populationthe where the domain is intended tobeserved. for ccTLDs.” sponsoring organization relatingwhich “is for delegation receiving requests tothe responsible of a and redelegation (namely, seven gTLDs in 2001-2002 ICANN, ICANN/IANA: Internet Domain Name System Structure and Delegation (ccTLD Administration and Administration (ccTLD Delegation and Structure System Name Domain Internet ICANN/IANA: ICANN, A.A.V V ARS Ibid Ibid ENEDYUHIN I N, nesadn te cL Dlgto ad eeeain rcdr. < Procedure. Redelegation and Delegation ccTLD the Understanding IANA, ”). The gTLDs are also divided into sponsored and unsponsored. The difference between two lies in the policy the in lies two between difference The unsponsored. and sponsored into divided also are gTLDs The ”). . .asia (for the Pan-Asia and Asia Pacific community), .mobi (dedicated to delivering the Internet to mobile . Notably, .aero (for aeronautical industry); .biz (for business activities); .coop (for accredited cooperatives), accredited (for .coop activities); business (for .biz industry); aeronautical (for .aero Notably, . ICANN delegated the administration of the ccTLDs registries to the respective national respective tothe oftheccTLDsregistries theadministration ICANN delegated ENEDYUHIN Since each then,process initiated by after the new gTLDswere ICANN, by introduced it The Domain Name Handbook: High Stakes and Strategies in Cyberspace. The Envelope, please: new , D OMAIN , , available at < http://www.domainhandbook.com/newtlds.html > (last visited in March, 2010). D 47 OMENNYE VOINY OMENNYE either national governments or commercial registrars) files a request for W ARS , at 50. Previously the allocation of the address space was managed by IANA [D OMAIN 48 44 The latter organization shall operate in the best interest inthebest shall operate organization The latter , sixor newgTLDs in 2003 W ARS 12 ] (SPb.:Piter 2009) (hereinafter, “V 49 IANA evaluates the requests the evaluates IANA See also See i.e. 45 ICANN or sponsor. 46 ). Notably, that the IANA, Procedure for Procedure IANA, ENEDYUHIN , D OMAIN See ”), CEU eTD Collection visited in March, 2010). 54 at < http://patent.kg/en/cctld?page=1 > (last visited in March, 2010). 53 52 administration will be transferred to Kyrgyzpatent (last visited inMarch, 2010). regarding the .kg domain name registry, the web-site will start functioning fully whenthe 55 http://patent.kg/en/story/2010/02/19/domain >(last visited in March, 2010). for implementation of requests that have been approved by the ICANN Board.” ICANN the by approved 51 been have that of requests implementation for 50 refuse.grant decision is the to requestor whether the taken accountboth intotaking criteria,technical and publicinterest and investigation thorough after andperforming […] apublicservice on behalf of Internet community.”the “AsiaInfo” is registrar. responsiblecommercial asa acts which company, liability limited AsiaInfo by performed “for adoption of procedures and policies for the assignment of SLDs 1.3. Conflicts between Trademark Law and Domain Names Lawand Domain Trademark Conflicts between 1.3. names. domain of registrar the remains the most likely scenariois the administration is with the governmental entity while AsiaInfo LLC with AsiaInfothe LLC or trasnferredKyrgyzpatent. to Thelater developmentshowed underthat decidearecommunity theirto what and bestinterests should theadministration beleft whether users’ internet is the it for wasthat response ICANN’s transfer. this for asking ICANN was filed to therequest also, functions to the Kyrgyzpatent, of requiringadministration transfer of the .kg zone. iswho bemain isthere whatorganization abigdebatewith going to to or administrator regards function isfunction performed bydomain names throughdesignating the Internet Protocol addresses. Lyudmila Pavlovich, More detailed information on .kg zone, Domain Name delegation aswell as ICANN communications is available More information is available at < http://www.icann.org/en/icp/icp-1.htm > (last visited inMarch, 2010). See supra See Ibid IANA, DelegationRecord for.kg that is available at < http://www.iana.org/domains/root/db/kg.html > (last . “ICANN Board of Directors that ultimately decides whether to approve requests. IANA is also responsible isalso IANA requests. approve to whether decides ultimately that of Directors Board . “ICANN For example, in the Kyrgyz Republic functions of the sponsoring organization are As was discussed earlier, trademarks serve as a source of identifier of identifiergoods. of of asasource serve trademarks earlier, As wasdiscussed section 1.1. 53 In 2009,President of Republic Kyrgyzissuedthe DecreeofApril the 7, 2009, We’ll Domainate See also , corporate web-site of AsiaInfo LLC available at < www.asiainfo.kg >or www.asiainfo.kg < at available LLC AsiaInfo of web-site , corporate , Slovo Kyrgyzstana (Bishkek), Feb. 16, 2010, available at < 54 13 50 52 However, today However, 55 The same The 51 CEU eTD Collection http://www.wipo.int/classifications/nivilo/nice/index.htm > (last visited inMarch, 2010). also 56 trademarks with aim the gainingof profit, well-known with similar confusingly or identical name adomain registers party athird is when also of other but Nike producers, not relatedtothem.most anythirdfrequentsituation The party the or may benotonly one nameregistrant thedomain it. However, ithave can first registers Nike manufacturer cooking apply apparatus for registering adomain name, only one whothe andifregisteredwas not producer forbothNike However, every sportswear available). class not believeapparatus for that cooking and belong toNike assuming sportswear trademark that manufacturer asa (itisregistered consumerstrademarkcooking that presumed of will apparatus thethat markconsider not does being forcan well-known) registered sportswear also be for the Purposes of the Concerning theestablished AgreementInternational andof Classification Nice Goods Services Registration of Marks. according tothe different of classes ifgoods to similarmarkare registered co-exist they can that its it protection.be registered forshould where the noted particular territory However, trademark protecting and preventing consumers from confusion as to the origin of goods the within the domain names. and be availability in“present” to every the worldpart of in resulted a clash of trademarks and However, possibility to registration of establishment namecomparing a domain register of to goodwilltrademark’s is cheap. a domain in Moreover, an basis. afirst-come-first-serve on registered are names domain alphabetical and trademark Both order as an address in the Internet Registration of Marks (1957) (hereinafter “ICGS 57 Dispute Resolution Policy The Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the of Purposes the for Services and of Goods Classification International the Concerning Agreement Nice The Helfer L.R. and G.B. Dinwoodie, G.B. and L.R. Helfer WIPO, International Classification of Goods and Services, available at < 56 protecting and ofthetrademarklaw goodwill owner the aimsTrademarkat , Stanford/Yale JuniorFaculty Forum, Research paper 01-05 (2001). Designing Non-National Systems: The Case ofthe Uniform Domain Name ”). The agreement contains 45 international trademark classes. trademark international 45 contains agreement The ”). i.e. in a bad faith. 14 57 (and presuming trademark Nikeexample, For See CEU eTD Collection domain name will differin at least one letter, then it “would constitute a new address.”) “aninfringement of a registered trademark requires goodsthe tobe identical or similar […]”, however, if the H Rights Interface (2008) (defendant was justified on the ground of parody). typesquatters would be acting inbad faith, forinstance, see WIPO Case No. D2008-1267: “hairywinston.com” users in so-called “mouse-traps”, causing them to view advertisements, However, notinevery case this type of 61 ACCORDANCE WITH ACCORDANCE DOMENNYKH IMENAKH V DOMENNYKH SPROCEDUROI SOOTVETSTVII IMENAKH and did not provide any advertisement on the web-page.” the on advertisement any provide not did and company ofthe activities the commenting only was party when (specifically, speech of of freedom expression as issue this regard to started arbitrators when changed trend the however, inissue, trademark the to isidentical name 60 59 many Internet domain correspondingnames with famous corporate trademarks in earlythe days of Internet. misspelling of a trademark. marks with deliberate incorporate typically names that 141 F.3d 1316, 1325 (9 58 more a have in companies or two instance, name (for sameinterest the domain legitimate have individuals, to adomain who or with namedisputes amongowners respect may trademark occur tothe domaincorresponds registered name. of purposes aboutproviding activities the comments of ownerthe of which trademark, the for namely purpose, non-commercial a predominantly for name domain one typically So called, registered domain name(s) tothe well-known trademark(s) owner(s) for valuable consideration. domain names that correspond dollars developing goodwill the the of trademark.” with well-knownreserving andlaterresellinglicensing domain names back tothecompanies thatspentmillions of trademarks as“[i]ndividuals typical described attempt [that] toprofitfromcybersquatters by Internet the withone ofthe theaim firstof transfer U.S. cases of the of cybersquatting, the court of the Northern District of Illinois For instance, c Typosquatters “…relay largely ontyping errors and afterdiverting users to their sites, they typically “lock” the Intermatic, Inc. v. Toeppen, 947F.Supp.1233 1227, (N.D.Ill.1996). ANDBOOK See See WIPO cases on issues of “exampletrademarksucks.com”, where arbitrators at first considered that the domain the that considered atfirst arbitrators where “exampletrademarksucks.com”, of on issues cases WIPO CPR Institute forDispute Resolution, File No. CPR009: “herstyle.com” (2000). Such situation resulted in the emergence of a phenomenon known as “cybersquatting”. In “cybersquatting”. as known aphenomenon of emergence in the resulted situation Such 191 non-commercial cybersquatting , at 377. (TorstenBettinger lassic cybersquatting UDRP th Also Cir.1998). Dennis Toeppen, as well as Dan Parisi, is famous for multiple registrations of PROCEDURE , Thomas Pattloch, , Thomas ed., Oxford University 2005)(Interestingly,Press China in under that its ccTLD ] (Wolters Kluwer2004). refers to the situations when a person registers one or more China, in covers situations when a person has registered aperson when situations covers UDRP 60 15 See also Typosquatting See D OMAIN [D 58 also OMAIN NAME CONTROVERSIES HEARING IN HEARING CONTROVERSIES NAME OMAIN Cybersquatting today has different forms. , A.M. , Efroni, N AME See also, M L INKOV refers to registration of domain Internet Domain Names and Trademark AW AND AW Panavision Int’l, L.P. v. Toeppen, , R ASSMOTRENIE SPOROV O SPOROV ASSMOTRENIE P RACTICE : A N I 61 NTERNATIONAL Sometimes 59 CEU eTD Collection (hereinafter, “Lipton, 40 WakeForest L. Rev.1361 (2005), available at< http://ssrn.com/abstract=770246 > (last visited in March,2010) 62 Resolution Policy, which will be discussed at length in the following Chapter. was eventually by created in lateICANN 1999 and is currently as Uniform known Dispute mechanism settlement dispute such level non-national) even (or international the At alternatives. wereeagertrademark owners to havestreamlinedinexpensive and settlement dispute specificallyfaced with trademarkissues to other, owners with regard the difficulties of names, domain when the on rights trademark of protection territorial thereand hand one the on registrant name domain is no a single body names. of and significant culturally locators rules governingcover disputes involving celebrity names, politicians, names individuals,of private geographical the similar trademark corresponding toa specific domain disputes.name).involving Disputes personal names Therefore, the See also Taking into consideration the global nature of the Internet, indefinite location of the of location indefinite Internet, the of nature global the consideration into Taking , Jacqueline D.Lipton, , Jacqueline Beyond Cybersquatting Beyond Cybersquatting: Taking Domain Name Disputes Past Trademark Policy ”). 62 16 , CEU eTD Collection 2.1. Dispute Resolution under Uniform Domain Name Dispute Resolution Policy Resolution Dispute Name Domain underUniform Dispute Resolution 2.1. March, 2010). World 70 http://www.peteryu.com/gigalaw0102.pdf >(last visited in March, 2010). 69 68 < http://www.wipo.int/amc/en/processes/process2/report/html/report.html > (last visited in March, 2010). WIPO Internet Domain Name Process (September2, 2001), available at 67 66 “arbitration” mechanism”“arbitration” administrative or mandatory a called is sometimes UDRP “The problems. cybersquatting itsand time, cost-effectiveness. of efficiency because widespread became 65 http://www.wipo.int/amc/en/processes/process1/report/summary.html > (last visited in March, 2010). http://www.wipo.int/amc/en/processes/process1/index.html > (last visited in March, 2010). 64 http://www.icann.org/en/udrp/udrp-policy-24oct99.htm >(last visited March,in 2010) (“UDRP 63 names,” asdomain trademarks and use of registration containing with whereitmainlyset of report recommendations, issues with “bad coped of faith names. and domain between trademarks conflicts resolve the limitcannotitsome to it particular territory, madedifficult this at the beginningfor courts the to betweendisputes trademarks anddomain names. in 1998. those disputes.those todeal with procedure dispute-resolution uniform establishing and accordingly cybersquating, PeterK.Yu, The Recognition of Rights and the Use of Name in the Internet Domain Name System, Report of the Second ofthe Report System, Name Domain Internet inthe UseofName the and of Rights Recognition The ICANN, Uniform DomainName Dispute ResolutionPolicy adopted onAugust 26, 1999, full text is available at < Zohar Efroni, A Efroni, Zohar Ibid Ibid. Ibid C , Fall, 2003 U. Ill. J.L. Tech. & Pol'y 457, available at < http://ssrn.com/abstract=676542 > (last visited in W P. is WP Itre Dmi Nm Poes aalbe t < at available Process, Name Domain Internet WIPO First WIPO. . . HAPTER The development of Uniform Domain Name Dispute Resolution Policy (“UDRP As it was noted above, the major goal of the UDRP was and is to deal with 63 yeardevelop toresolve WIPODuring inorder to setof recommendation started that See also See A summary of the final report of the Second WIPO Internet Domain Name Process 67 Guidebook to Cybersquatting Litigation: The Practical Approach in a Post-Barcelona.Com Based on these recommendations, ICANN adopted UDRP adopted ICANN recommendations, these on Based II. , Lipton, A PPROACHES OF Beyond Cybersquatting 70 registration inall fixationand nature compulsory its due to R ESOLUTION . T 17 RADEMARK VS 64 As the Internet has no borders and person and borders no has Internet the As 66 i.e. referring to the cases of classical 65 cameWIPOup In April 1999 . D 69 OMAIN ”). 68 latter the and N , available at < AME ”) started See also , CEU eTD Collection http://www.icann.org/en/udrp/udrp-rules-24oct99.htm >(last visited March,in 2010) (“UDRPRules 74 73 forsuccessful complainant). of the application uniform the (a) UDRP to potentialall system: respondents to a cybersquatting action resolution and(b) the automatic execution dispute of name an effective remedy domain ICANN of the features structural key two underlines and operation UDRP process ofthe scheme comprehensive provides Christie (Professor 2010) March, LegalTheory Research PaperNo.30, 2002, available at < http://ssrn.com/abstract_id=319201 > (last visited in Other Intellectual Property Disputes on the Internet 72 ResolutionPolicy, available at < http://www.icann.org/en/udrp/udrp-schedule.htm resolution service providers accredited by accredited ICANN. resolution service providers The resolutiondispute procedure. whole administrative is procedure administered by dispute for eachstageofthe and requirements setout theprocedures UDRPRules other particular, the and dealing Seoul;and National ArbitrationForum (NAF)(approved effective 23December 1999) located inthe United States mostlyResolution Centre (ADNDRC) (approved effective 28February with2002). It threehas officesBeijing, in Hong Kong the cases75 where complainants are from and based in North America; Czech Arbitration 71 availableother meansof settlement,dispute namely courts. inisparty it interested transfer moreshould thancancellation claiming something or refer tothe complainant the to name domain the of transfer or name domain the of cancellation arbitration. in specificallycreated orthrough offices domain or usually resolved names courts incorporates itinto registration agreement. Otherwise, the disputes between trademarks and UDRPand the voluntary UDRPwill if ccTLD the beaccepts registrar applicable the in incorporated with all registrants. name gTLD domain agreements as from this 1999UDRP, Startinga clause,confirmed difference. Federation wastobeOctober that extent similar to arbitrationEven thoughtheUDRP is beingcompared with the arbitration process, UDRPdoesnotthe to clause in contract. gTLDsbetween anddomainname name with to agreements registrar. registrant a domain regard For instance, some of the courts in Russian Clause 4(i), UDRP. WIPO Arbitration andMediation Center (approved effective 1December1999); Asian Domain Name Dispute See also, Ibid < at available is text full 1999, 24, Octoberon adoptedUDRP forRules ICANN, . See also The UDRP also contains rules Rules (“UDRP rules contains The UDRPalso namely a successful to complainant, available remedies two for stipulates The UDRP Andrew F. Christie, ICANN, Timeline forthe Formulation and Implementationof the Uniform Domain-Name Dispute- The ICANN Domain Name Dispute Resolution System asa Model forResolving , The University of Melbourne Faculty of Law, Public Law and 18 ”) 75 74 which basis of on main grounds The implementing the UDRP policy use, in use, policy UDRP the implementing > (last visited in February, 2010). 71 under issue of case In ”). 73 . Thus, if a 72 CEU eTD Collection 77 76 March, 2010). service providers is available at < http://www.icann.org/en/dndr/udrp/approved-providers.htm > (last visited in Court (CAC) has been approved January in 2008. More information on the list of approved dispute-resolution that showing toan inclaim, accordingly arbitration namein interests a domain a response legitimate and use. registration domain name andaswell as list for of trademark indicatingcircumstances owners faith bad provides domain name UDRP the Furthermore, interest. orlegitimate badfaith, similarity, confusingly or identical holder with list of defenses in order to show legitimate interests in the shouldgrounds bemet: three all succeed to that noted be should it below, presented complaint the makes claimant or panel mayor into consideration. take support its argument of havinglegitimate interest in disputeddomainthe name, which a panelist Clause 4(c) (i) – (iii), UDRP. Clause 4 (a) (i) – (iii), UDRP. (iii) (a) (ii) (i) (a) (c) (b) The above grounds largely resemble some important elements of trademark law, like law, trademark of elements important some resemble largely grounds above The faith. bad in used being is and beenregistered has name domain the that the domainthe […] name has beenused with a ClausePursuantto 4(c)of nameUDRP adomain holder candemonstrate one’sor rights and name, domain the of inrespect interests legitimate or rights no has registrant the that complainantthe hasrights; which in mark orservice to a trademark similar orconfusingly identical is name domain disputes the that for the the forpurpose of selling, orrenting, otherwise transferringprimarily domainthe tothe complainantname question in where the name domain the acquired or registered has registrant a that indicating circumstances in The bad faith evidence stipulated UDRPrelates to theclaimantthe establishing: This indicated listisexhaustive, not respondentmay thus evidencepresent other to issue. a commercial gain or to misleadingly divert customers or to tarnish the trademark or service mark at the respondent is making legitimate non-commercial orfair use of domainthe namewith intent no to make or name; the in rights mark service or trademark no acquired has she if even the respondent beenhas commonly knownby the domain name as an individual, business ororganization, notice of the dispute; 77 bona fide 19 offering of goods and services prior to receiving to prior services and ofgoods offering 76 CEU eTD Collection whether to suspend or terminate administrative proceeding, or to proceed to a decision (Clause 18 (a) of the UDRP ofthe (a) 18 (Clause decision a to Rules). proceed to or proceeding, administrative terminate or suspend to whether competent jurisdiction during an administrative proceeding, it would be upon discretion of Panelthe to decide 81 80 I 79 78 by presented information basis the on of beresolved will case and the above expressed in the proceedings, theeffectiveness, probably in away eventhat if Respondent takes no actions and donot participatedispute will neverthelessUDRP system is proved to be effective mechanism for disputebe resolution. Oneresolved of the ways of its according with the UDRPis is after proceeding such administrative concluded.” commenced or proceeding norms a court of competent jurisdiction for independent resolution before such mandatory Therefore, thepartiesprecludedfrom toadispute arenot referring and“submitting thedisputeto be resolution. alternative astheUDRPis to dispute samedispute considering considered the taken. Importantly, decision by the taken panel the under theUDRPis notbinding on court the cancel changenameholder transfer or or name domain decision the to according have have to protection “in the country in which domain namewas and registered being used.” itself, trademark the NTERNATIONAL Torsten Bettinger, Clause 4(b) (i) – (iv), UDRP. Clause 4(k), UDRP.It should be noted here that ifone of the parties initiate legal proceedings incourt of Ibid. (d) (c) (b) As alot and usedtheUDRPtoprotect oftrademarkowners theirrights interest, the The outcome is of registrarthe UDRPprocedure bindingon the whowill have toeither before registered was name domain the if faith bad prove to fails one UDRP the Under service or availableof aproduct on that or website.website registrant’s ofthe endorsement or affiliation sponsorship, source, the Internet users to websiteher by creating a likelihood ofconfusionwith complainant’s the trademark as to that by using the domain name, the registrant has intentionally attempted to attract, forcommercial gain, that the registrant has registered the domain primarilyname the forpurpose of disrupting a competitor, or be established; can conduct of such apattern that provided name, domain a corresponding in mark the reflecting from mark service or trademark of the owner the prevent to order in name domain the registered has registrant the that consideration;valuable for claimant, of the a competitor to or mark service or trademark of a owner the is complainant H ANDBOOK Uniform Domain Name Dispute Resolution Policy 79 interestingly that in order to claim protection trademark owner does not 991 (Torsten Bettinger (Torsten 78 ed., Oxford University Press 2005). 20 , in D OMAIN N AME L AW AND 81 P RACTICE : A 80 N CEU eTD Collection (e.g. patent infringement).” disputes non-contractual and agreements) development and research and products pharmaceutical for agreements distribution agreements, coexistence trademark licenses, software and patent (e.g. disputes contractual both include http://www.wipo.int/pressroom/en/articles/2009/article_0005.html > (last visited inMarch, 2010). “The disputes 88 87 86 85 cybersquatters”. faith bad against 84 holders oftrademark protection the towards geared “it is that fact the in is UDRP http://ssrn.com/abstract=1080313 > (last visited inMarch,2010). InProfessor Lipton’s opinion, the disadvantage of Domain Name Sharing 83 March, 2010). Security Report, Vol. 24, No. 4, 2008. Available at SSRN: < http://ssrn.com/abstract=1010088 > (last visited in 82 interface. trademark namesand on domain cases of thestatistics regarding information of arrange wide its web-site legal systems.” different with from countries [are] various “panelists the since consistent is not UDRP the of interpretation the that is claimed it UDRP, criticism. to is subject and process ultimate enough. mature or effective be to refer not do countries in those laws if the countries respective in their disputes resolves for torefer courts, those rules and especially the to to in developing countries, policies order be for might and anincentive this Many resolved, weresuccessfully complainant. cases legitimate rights. legitimate especially registrantthe when is lawfully registered domainthe andfor him defendto his policy, the understand to registrant name domain for easy is not UDRP the of language claimed complainant-friendly short” Cortes, Clause 5(a), UDRP Rules. Pablo Cortes, Pablo Forinstance, WIPO, Record Numberof Cybersquatting Cases in 2008, WIPO Proposes Paperless UDRP. < Ibid Ibid Ibid . . . 84 See also WIPO as Arbitration Center one of firstthe approved disputeresolution providers has on be to all UDRPisnot the considered time successful the operation, despite However, in orderfor answer respondent prepare in to order adequate defense.the to supra note83. , Jacquelin D. Lipton, An Analysis of the UDRP Experience: Is it Time for Reform? 86 Other important concern is in the absence of consistent interpretation of the of interpretation consistent of absence in the is concern important Other 88 83 . Harvard Journal of Law and Technology, Forthcoming, available at SSRN: < SSRN: at available Forthcoming, Technology, and Law of Journal Harvard . In 2008 the Center proposed to eliminate the submission of paper copies ofpaper submission eliminatethe to proposed Center In 2008the , for unfair time allocation, namely 20 days for respondents reply is “too A Winning Solution for Youtube and Utube? Corresponding Trademarks and 82 For instance, the Policy is criticized for being more being for is criticized Policy the instance, For 21 87 (27 August 2007). ComputerLaw and 85 also is It the CEU eTD Collection 95 94 93 92 91 March, 2010). http://www.icann.org/en/topics/new-gtlds/irt-final-report-trademark-protection-29may09-en.pdf > (last visited in protected marks list,and other top and second-level rights protection mechanisms 90 http://www.wipo.int/pressroom/en/articles/2009/article_0057.html > (last visited inMarch, 2010). 89 ACPA establishes for standards defining and prosecuting unlawful cybersquatting. The ACPA into laws. Lanhamembodiment the incorporated of Act, U.S. trademark statutory the ActCybersquatting Protection Consumer of 1999 (“ACPA Resolution Dispute vs.DomainNames toTrademarks U.S. Approach 2.2. is astobereferred enough thisto. procedure effective higher threshold for proving badfaith was proposed. existencethe hand, other the from however, ofincreased, more even are this costs the that seems It courts. procedure simplifies coststhe latterof the procedure or court, and being dissatisfied with decisionthe refer tothe the protection paying thus all UDRPprocedure, the referto should owner interest, trademark then legitimate of the trademarkhas nameholder domain the bewhether doubt can actually there if that what itappears However, owner’s rights, but the Suspension System implemented thisundertaking. were that required along with online and communications, startingfrom 2009 December 14, they owner’s rights. owner’s inviolation is atall registration trademark of nodispute wheretherewas aimedwhether atcases 15 U.S.C. Sections 1051 – 1129. 15U.S.C. Section 1125(d). ImplementationRecommendation Team Report, Ibid. Ibid. Ibid. < at available 2009), (Dec.11, Proceedings Paperless Launches WIPO WIPO, Roughly at the time of implementing the UDRP the U.S. Congress enacted the Anti- the enacted Congress U.S. the UDRP the implementing of time the at Roughly namely was introduced, evenmore process simplified Recently another 91 Moreover, is system the not goingreplace to the UDRPbut tosupplementit. . 90 This system intends to resolve disputes even in shorter period of time and time of period shorter in even disputes resolve to intends system This 89 IRT Recommendation for an IP Clearinghouse, a globally 22 93 Its further development will show whether show will development further Its ”). 25-46, available at < 94 The ACPA was then Uniform Rapid Uniform 95 The 92 CEU eTD Collection goods or services, or the person’s prior conduct indicating a pattern of such conduct;(VII) the person’s provision of provision person’s the conduct;(VII) of such apattern indicating conduct prior person’s the or ofany offering services, or fide bona goods in the name domain the use, to intent an or having used, having without gain financial (VI) the person’s offerto transfer, sell, or otherwise assign the domain to name markthe owneror any third party for site; of the endorsement tarnishor disparage the mark, by creating a likelihood to of intent confusionthe with as or to the source, gain sponsorship, affiliation,commercial orfor either mark, by the represented goodwill the harm could that name domain (V) the person’s intent to divert consumers name; domain the from under the mark accessible owner’ssite in a online mark of the locationuse fair or to a site accessible noncommercial fide under bona the person’s the (IV) or goods any of offering fide services; bona the with inconnection name domain of the any, if use, prior person’s the (III) commonly used to identify that person; (II) name; domain the in any, if person, ofthe rights the property intellectual other or trademark the (I) extent intent described undersubparagraph to (A),a court may considerfactors such as,but not limited to— which the100 domain99 name consists of the legal name of the person or a name that is otherwise 98 97 96 provides. specifically assection circumstances intent. faith furtherThe ACPA providesforanon-exclusive listof thatmay circumstances indicate badthe moment registration. was famous of asof dilutivethe of or a markthatdistinctive similar or confusion test with the “identical or confusingly similar” standard.” substitution of “trademarkthe use” requirement with bad faith registration and the likelihood of activity. that from profit to intent faith and and goods withoutisabadthere regard services; or used to (c) trafficked, was registered, registration ifviolates test the markis(a) aprotected involved; (b) a corresponding domain name Internet.” onthe address domain registrar, name domain by any name assigned or with is registered which designation alphanumerical registry, or provides for abroad definition “domainof names”(subject matterjurisdiction), “any notably other domain name registration authority as part of an electronic 15U.S.C. Section 1125(d)(1)(A)(ii)(II). Efroni, 15U.S.C. Section 1125(d)(1)(A). 15U.S.C. Section 1127. 15 U.S.C. Section1125(d)(1)(B)(i), inparticular provides: “Indetermining whether aperson hasabadfaith The ACPA provides for explicit protection of are identical,The ACPAprovidesof explicitprotection for that registrations confusingly The ACPA forprovides atestidentifying cybersquatting activity.A domain name Internet Domain Names and Trademark Rights Interface 100 Yet it is the courts’ discretion to find any other bad faith intents under specific 96 97 “The most important innovations of the ACPA are the are ACPA the of innovations important most “The 23 , at 382. 98 99 CEU eTD Collection matters.” law private-international other and complexities, law of choice forum-shopping, to questions regarding the relationship between the ACPA and the UDRP, rangingfrom personal jurisdiction differencesbeinsome important resulting can singledout of “a variety emergence issueslegal of and registrars, registrants between relationship contractual basedon process of arbitration Martha L. Arias, L. Martha 103 102 101 famous within the meaning of subsection(c)(1) of this section. (IX) theextent to which the mark incorporated in person’s the domain name registration or is is not distinctive and and parties; of the services or goods the to dilutive of famous marks of others that are famous at the time of registrationof suchdomain names, without regard confusingly similar to marks of others that are distinctive at the time of registrationof such domain (VIII) names, person’sthe orregistration or acquisition of multiple domain whichnames the personknows identical are or pattern of suchconduct; a indicating conduct prior person’s orthe information, contact accurate to maintain failure intentional person’s material and misleading false contact information when applying forthe registration of the domain name, the violation. no was protected under theACPA’s faithgood whichpursuantprovision to maya court there conclude is registrant that claim may he then unlawful, way in any not and fair is name domain the damages and attorney’s fees under the Lanham Act. damages up to USD 100,000 per each infringing domain name underthe ACPA and actual owner. trademark its tothe transfer and owner shall have the right to remedies that include forfeiture or cancellation of the domain name 105 tribunal).. 745 (E.D. Va.2001) court(the considered that UDRP panel decisiondoes not equal to decisionthe of arbitralthe 104 visited in March, 2010). 2008), available at < http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2147 > (last Goodfaith provision is also known “safe as provision. harbor” 15U.S.C.Section 1125(d)(1)(B)(ii). 15U.S.C. Section 1117(a), (d). 15U.S.C. Section 1125(d)(1)(C). Efroni , 2d Supp. 139F. Inc. Netlearning v. Parisi see ones, bedifferent to considered are procedures two these However, Comparing the ACPA as the U.S. Federal statute applied by U.S. court and UDRP, a kind However, if the domain name owner has a reasonable ground to consider that its use of trademark the test, of the requirements meet the to ability and claim of successful In case 105 Internet Domain Names and Trademark Rights Interface Comparing the test provided in the ACPA with the one defined in the UDRP, the InternetLaw – Parody: Safe Harbor under theAnti-Cybersquatting Protection Act 103 101 Moreover, the latter also has the right to seek statutory seek to right the has also latter the Moreover, 24 102 , at 461. (October6, See also, 104 CEU eTD Collection 3(b) and 4(k) of [UDRP]the Policy”. The subordination ofthem. the UDRP “reverse” to to national attempt to likely less courtsbe even ofwill and “competentcourts, jurisdiction”in federal decided been is already manifested, have that interdisputes alia, in Clauses 109 fee. attorneys’ and damages actual damages, statutory grant as well as name, domain of the transfer cancellation, forfeiture, the order can courts U.S. whereas name, domain disputed 108 visited in March, 2010). 2008), available at< http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2147 > (last 107 106 inwas challenged and reversed.Russian courts subsequently itself, found exactly owner where UDRPdecision Japanesetrademark the situation this the when “parody that note isfor thevalid using excuse asadomainname” trademark provision. harbor” “safe the for only provides hand, other the on ACPA, the registrants, distinctivefaith registration, trafficking or usemark of the domain name identical or confusingly similar to a is bad of ACPA showing in the domainname.Under the interests nolegitimate had registrant the sufficient. have show not that ACPAdo to under the asplaintiffs owners bemore pro-trademark deemed to The UDRPACPA from differs cybersquattingthe standard presentedin UDRP.the The ACPA’s standardis contains an explicit list of defenses available to may face than the ones stipulatedshould beproved without any Moreoverdoubt. theremedies under theACPA are much stronger by the UDRP. UDRP. ACPA and evenif losingthe party challenges court’s the decision by filing a complaintunder situation is simpler if the losing party only appeals the decision of the U.S. court made situation losingwhen the in party a domain seeks nameunderto reverse dispute outcome.the The the “Although the [UDRP] Policy does not explicitly preclude such option, it appears unlikely that panels will accept of the or transfer cancellation either order to thepower have panel or UDRPpanelist the above, discussed is As Martha L. Arias, Ibid . 109 These constraints can be indeed by encountered losing any from party any was country. It de novo On the contrary if the losing party seeks reversal of the UDRP decision, such party Internet Law – Parody: Safe Harbor under the Anti-Cybersquatting Protection Act review of the dispute by the court applying rules of the ACPA. 109 Efroni, Internet Domain Names and Trademark Rights Interface 108 However the most prominent difference lies in the in lies difference prominent most the However 25 107 , however, it (October 6, (October , at 392. 106 Some CEU eTD Collection of Origin of Goods” September dated 23, 1992 #3520-1 (as amended ofon Places December11, 2002) Appellations (hereinafter, and “RussianMarks Service Trademarks, “On Federation Russian of the law trademark old the under considered were work this in discussed cases the However, below. to note refer please, Federation, Russian the 112 the legislation of RussianFederation. 111 P in the Internet is deemed to be infringementuse of identicala mark confusingly with similar or a mark of asan trademarkowner the address of the trademark owner’s rights.relevant law in both countries is trademark law. Trademark Law Trademark 110 suitan individualagainst registered domain.who Theowned respondent ashop years having passed instances.through all Kodakcourts’ Eastman Company filedCorporation a domain name. then may decisions inthe rendered incomprehensible. result something framework. If the decision of a court is based on poorly or badly formulated statutory provision, aremoreit adecision in reluctantto ifwas notCourts expresslytake legal regulated the particular, in Russianthe Federation strictly apply statutorythe provisions to issuethe atdispute. in andin arebasedlaw courts on precedents, countries, of civil courts the where decisions of favor plaintiffs. comparing However, with common law countries, such as United States, application courts through lawtrademark withof provisions in madefrequently decisions the disputes arisen in connection with anddomaintrademarks names were considered by Russian Kyrgyz law. Resolution Dispute vs.DomainNames ApproachtoTrademark Russian 2.3. 2010). 114 December6, 2007. 113 ROPERTY As of writing this work, trademark law of the Russian Federation was repealed by Part IV of the Civil Code of See, discussionof major provisions of Kyrgyz Trademark Law. Usually legislators inKyrgyzstan mostly follow Kodak.ru case brief is available at (last visited March,in Article 1484, Chapter 76, Part IV, Civil Code of the Russian Federation of November 30, 1994, as amended on See A.P.S One of the most famous domain name cases in the Russian Federation is dispute over is dispute Federation Russian in the cases name domain famous most the of One Legal protection R IGHTS IN IGHTS ERGEEV ”). 111 Therefore, in considering trademark and domain names disputes, the most the names disputes, domain and trademark considering in Therefore, See also . R P USSIAN RAVO A.N. Kyle, Postateinyi kommentaryi k chasti IV GK RF (Moskva: 2008). I 110 NTELLEKTUALNOI SOBSTVENNOSTI V SOBSTVENNOSTI NTELLEKTUALNOI F 114 EDERATION of trademarks under the Russian law is similar to the one under one the to similar is law Russian the under trademarks of Itemerged in midof1999 the and hasbeen considered during three ] (Prospect 1999). 26 112 RussianunauthorizedPursuant CivilCode to R OSSIISKOI F EDERACII [I NTELLECTUAL 113 Therefore,most CEU eTD Collection independent and accredited registrars. accredited and independent competing different to transferred later was of registration function This ccTLD. in.ru names domain registering RosNIIROS provides technical maintainability of the DNS functioning of ccTLD.Until 2000 RosNIIROS was Information Network the support Centre to (NIC) forxSU/RU.is ofOne constituentthe RosNIIROS parts of the NICactivityof the is administrationof tasks .ru top level main domain. the of One networks. public via resources coordinate IP networking in Russia; tosupportR&E organizations in getting access tothe Internet information RosNIIROS are to develop computercommunications in the interests of & Research Education (R&E); to RussianResearch Centre "Kurchatov Institute" and Computer Centre of Kurchatov Institute. The goals of the Institute forPublic Networks (RosNIIROS)wasfounded in1992 by Higherthe School Committee of Russia, 115 names doesnotpreclude from such court the recognizing use tobeaninfringementof trademark domain use of as absenceof thatregulation trademarks of statutory and stated courts, explicitly decisions of lower which the the reversed Court, Arbitration casereached In time the Highest the from Kodak orits official further dealers, therefore, use of Kodak goods can not be prohibited). principle should apply (respondent’s web-site legitimately contained Kodak goods purchased instanceadding court that useof domainnamean isnot advertising and exhaustionthat of rights decision, plaintiff court’s the appealed. notherefore claims regarding the domain names can be broughtforward. Disagreeing with the name, domain to the related relationship regulate that acts laws any other no or are there to Eastman Kodak Company.normoreover services,good, clearly respondentthe on web-sitethe stated itdidthat belong not The courta is neither name domain the that stated alsofurther court The another. from space noted informational of that as of the date area distinguish is one to in name major Internet domain the the the goal of that reasoned having of considering the casedecision of the court in one of the major newspapers. court to prohibit respondents touseKodakthe The trademark asadomain name and publishthe court refused in considering the claim case the as a third party. infringement plaintiff ofits The claimed trademark requesting rights the name, specifically Russian The registrar of Kodakgoods. hewherenotably,legitimately wasreselling,domain purchased Institute for Public Networks (RosNIIROS) RIPN,What isRosNIIROS? (last visited onMarch, 2010). Russian However, the appellate and cassation courts upheld appellate the However, and thereasoning courts of cassation anddecision firstthe See also Venedyuhin, Domennye voiny. 27 115 has been involved in involved been has CEU eTD Collection Japan (“Denso Corporation/the complainant Corporation/the (“Denso Japan 121 120 a56-46111-2003-ot-11.11.2008 > (last visited . wasinitially by considered Arbitration WIPOand Mediation for reconsideration. court arbitration 119 118 information is available at < http://www.ripn.net:8080/nic/whois/whois.cgi > (last visited inMarch, 2010). 117 attract to opportunity an had potential buyers respondent to the its web-site therefore and receivedplaintiff aneconomic ofthe profit trademark from the visits to of potential identical customers name ofdomain his web-site. trademark owned by the plaintiff without any authorizationfrom the latter; the respondent deliberately registered the 116 of goods. classes 4,5,6, 7, 8,9, 10,11, 12, 14, 16, 37, 38 and 42of ICGSwhichthe include widevariety Federation. was It registered onAugust2000 31, with priority the of date July for 31, 1996 its registered “DENSO” in trademark 103 countries all including world the over Russian LLC/the Russian respondent Federation (“DenSo Petersburg, Corporation. Kodak Eastman of rights Case No. D2003-0482. According to International Classification of Goods and Services. The name “DenSo” was an abbreviation of the Russian version “ Case No. D2003-0482. As of the date of writing this work the domain name belongs to Eastman Kodak Company, Kodak Eastman to belongs name domain the work this writing of date the of As Whenmaking adecision, Highest the Arbitration Court based following:onthe therespondentused the 118 In 2003theWIPO Arbitration issuedCenter adecision transferto domain domain name relates tothe courts of Russian consideration case currently under The next 120 The dispute arouse between Japanese Denso Corporation, between The legal arouse dispute based ainAichi,entity Japanese Denso which on wasregistered had “DENSO”, The respondent alicense on trademark the 117 116 Thus, the court sent the case back to the first instance first the to back case the sent court the Thus, ”) and DenSo LLC DenSo ”) and 28 121 Ⱦɟɧɶɋɨɮɢɢ ”). Japanese Denso Corporation 119 , a legal entity based in Saint- ( Ⱦɟɧɋɨ )” of [Day of Sophie], see CEU eTD Collection February 2, 2007, where district court so to say “awarded” the domain name to the Denso name the to domain sotosay“awarded” the court district February where 2, 2007, the decisions of appellate and cassation 6, 2000). October courts and upheld the in Denso trademark Russianthe registered for Federation classone decision 39of ICGS (priority date: of the districtfor licensee LLC is DenSo alegitimate fact that tothe only pointed court The of classes ICGS. court of world,the including theRussianFederation (priority July date: 31, 1996)for as many as 14 in is of 103 countries of owner Denso trademarkthe registered alegitimate Denso Corporation factignore the seemed that courts to of case,the by the parties the facts presented the considering http://internet-law.ru/intlaw/domens/denso2.htm > (last visited inApril, 2009). 123 46111/2003 available at < http://internet-law.ru/intlaw/domens/denso2.htm > (last visited April,in 2009). 122 case consider the to made adecision court above the the on Based UDRP. under dispute the of consideration to as arrangements no had LLC DenSo of parties dispute, the the further The court explainedthat court. be underUDRPcan in appealed not decision the adopted the therefore, arbitration proceedings, According tothe firstinstance consideration arbitration court of a caseunder UDRPis nottrue Center. oftheWIPO Arbitration based on the decision proceedings the toterminate plaintiff) the appellate and cassation declinedin firstinstance the of norms,detailed procedural court (and consideration particular, court upheld such note interesting reasoningthe to of both arbitration Initially engagedcourts. both courts in decision) the requestupheldArbitration Appellate Court the decision the Arbitrationof It isCourt of Saint-Petersburg. of Denso Corporationuse the domain name. TheDenso Corporation appealed. (the suitwith Arbitration Court of Saint-Petersburg, Resolution of the 13 of the Resolution A56- No. Case 2005, 20, April dated Region Leningrad and ofSaint-Petersburg Court of Arbitration Decision On November 11, 2008 On 11, November Highest renderedthe Arbitral itCourt adecision cancelledwhere th Arbitration Appellate Court dated July 2005,13, Case No.A56-46111/2003 available at < 29 122 which recognized the right of DenSo LLC to de novo under Russianthe laws. While i.e. Denso Corporation and Corporation Denso 123 H wvr the However CEU eTD Collection 128 (last visited March,in 2010). Western Circuit datedJanuary 2008,11, available at of the 13 domain name in disputes Russia approachesthe tosuch disputes resolution havebeen not yet mark in numbername Despite thecourts and growing trade of disputes. considering domain intobe by of might account that RussianFederation.the Arbitration taken Court courts the owner. of trademark the rights the mere registration firmregistered names andtrademarks of saidthe And considered companies. court that cassation of the domain name cannotequal tothe rights disputable name, domain which are expressed intheform of be considered as a violation of the exclusive 127 126 name, into account bona fide rights toname few. Federation, Russian of the both partiescase and theirdisregarded themain clauseof UDRP accordingwhich to nationalthe shouldcourts the consider good faith interestdecision in the domain of the Highest Arbitration Court is subject to criticism, namely that the court 125 < http://kolosov.info/domennye-spory/denso.com-a56-46111-2003-ot-11.11.2008 > (last visited March,in 2010). 124 of name. wasnoactual there moreover, use domain the inknown market, the the latter’s registrationdefine, thatthe the Japanese Denso Corporation had prevailingCorporation rights over the DenSo LLC as at the Corporation. timewas of already existing and considered to be well- Resolution No. A5560/08 of Highest Arbitration Court of Russian Federation of November 11, 2008, available at available 2008, 11, of November Federation ofRussian Court Arbitration ofHighest A5560/08 No. Resolution Ibid. See also See Ibid. Ibid de novo . 127 The above cases represent a bright example of evolving judicial practice of of evolvingRussian judiciala bright of example The above practice casesrepresent Before the final decision of the Highest Arbitration Court, the appeal court was taking th as the court identified that both DenSo LLC and Denso Corporation have formally Arbitration Appellate Court dated October5, 2007, Resolutionof Federal Arbitration Court of North- , Resolution of Federal Arbitration Court of North-Western Circuit dated November 11, 2005; Resolution 2005; 11, November dated Circuit of North-Western Court Arbitration of Federal , Resolution 124 , or the decision was criticized for not observing the procedural fornorms, or procedural was criticizednotobservingof decision the the the In its reasoning the Highest Arbitration Court referred to the UDRP in order to in order UDRP the referred to Court Arbitration theHighest its reasoning In 126 128 However, there is now the last decision of the Highest the of decision last the now is there However, 30 125 However, the However, CEU eTD Collection 131 P 130 129 defensesubmitting the ortimefor filing to afterthe court settlement alternativethe dispute meaning of ofArt.21 Regulation 874/2004.” assoon procedure as onewill abuse“anameisclaim or within speculative domain that the UDRP. procedure under governing The principles registration. theRegulation is very tothe similar the and Domain Level Top <.eu> the of functions and implementation the concerning rules namely Commission No874/2004Regulation (EC) of 28 Aprillaying 2004 down public policy disputes and on community level Regulation on alternative dispute resolution was adopted, isTLD there high Thus, of isinfringement. risk there need trademark of regulation for possible community legislation adopted for the purposes of this TLD. Of course, with the adoption of new Eventually <.eu>. newTLDwasintroducedthe andin werealso there this new regard namely Union, TLD for whole aninterest European of anew the creating was there However, Relating on Trademarks,andMember States Mark. Community to the Regulation Trade Approximate Lawsof the the Council of First Directive 21 December1988to trademarks were of such unification legislature, as Regulations, The Directives. laws important regulating Union, shall follow and comply with the recommendations of the enacted community laws for members European of name Countries, totrademarkinterface. domain and as specific regulation Resolution Dispute DomainNames vs. ApproachtoTrademark European andCommunity 2.4. raised andconsideredby Russian the courts. many thathavenotbeeneven name todomain issues disputes There arealso established. related RACTICE Torsten Bettinger, C Ibid. ATHERINE 130 : European Union consists of twenty seven member states each of them having their having them of each states member seven twenty of consists Union European A N However, under <.eu> ccTLD any one can start alternative dispute resolution dispute alternative start can one any ccTLD <.eu> under However, I S NTERNATIONAL EVILLE Alternative Dispute Resolution Procedure for“.eu”, in , EU I NTELLECTUAL H ANDBOOK 1141-1159 P ROPERTY L (Torsten Bettinger AW AND 31 131 It has differences in the time periods for periods time in the differences has It P OLICY 213, 220-69 213, (Edward Elgar 2009). ed., Oxford University Press 2005). International D OMAIN N AME L AW AND 129 CEU eTD Collection 137 136 Bettinger 135 possible confusion 134 andCode againstUnfair Act Competition. forareinthe protectingTrademark Act, General grounds reflected trademarks Civil Protection courts. the to beresolved else should ccTLD is designedonly abusivefor or “preventingspeculative anything domain registrations” 133 132 in name.” interests domain the prove “eitherbe in proven acumulative manner,while underthe Regulation 874/2004aparty No. should registration Resolution under by Providers UDRP appointed the requirementsshouldthe all (3) registry; the or usename disputeresolution nationalunder the islaws not binding upon Alternativethe Dispute […] in bad EU Regulation industrial but other covers notonly as trademarks, rights well;(2)the domain faith or cannotprocedure, number of language available for proceedings. assert any rights or legitimate letter in domainletter the name was replaced. and the registrant of the domain name are similar. in namedomainholderoffered by importance goods wasof whetherthe deciding trademark the protection where two persons use elected names within the framework of the general freedom frameworkpersonsfreedom of general of the usenames within the elected protection two where heldif Court is that interestthere a ismorebetween worthy conflicttwo names“which of similar caseSupreme will In Austria the Whatbe result? the trademark. theprotected similar to Reinhard Schanda, Ibid Ibid Ibid Ibid Ibid. . , at 88. , at 1149. , at 1152. ed., Oxford University Press 2005). To takesome examples of some of EuropeanUnionthe in countries, Austria the legal What ifWhat has company the in existed marketthe for 5years already, is its and abbreviation , and some courts considered that there is a likelihood of confusion even if one Austria, in D OMAIN 133 <.eu>forIt should theresolution ofdisputes noted that be N 134 AME 136 L AW AND The content of the website placed under the specific the under placed website the of The content 135 Again, what is taken intoaccount is consumer’s 32 137 P RACTICE 132 : A Other radical differences are that (1) N I NTERNATIONAL H ANDBOOK 80 (Torsten CEU eTD Collection H 143 142 registration, such as or .” to be “illegal, abusive found ordelusive”,will it if but most importantly,registration refused be may “a name number Domain of descriptive name”. domain a as Hungary domain in names were atrademark as sign refused their register “can legal, and natural both persons, foreign of number limited Law, Hungarian under founded entities legal 141 Bettinger ed., Oxford University Press 2005). 140 139 138 person who first uses the sign has a better is action to be determined according tothepriority according towhich,principle, asarule, the right” or inor case of its registration trademark including inexpressly protection France. domicile such France as establishment, is with connection some anecessity of there regulations, under STLD asregistration however,it that should benoted owners, those to specifically which wasallocated well as under TLD is the name.”of domain the facto registration and de same right property as intellectual between “priority inthan rather rights, property Hungary, intellectual of priority the namely subject to specific experts”. dispute will be resolved throughmediation,which would be“made independentup of registerallowed adomain to nameor it’s under <.hu> STLD. second TLD, namely, <.tm.hu> or , to name few. Moreover, only limited persons are court. through arbitration panel and thelatter’s decision is binding as if it wasrendered by usual the maintenance of will the name, then dispute or domain be resolved the registration the concerning ANDBOOK Torsten Bettinger, Angela Bruning, Angela Ibid Ibid Ibid. Ibid 142 . , at 1218. , at 94. In France trademark owner can register the trademark under ThTLD, namely <.tm.fr> While inHungary a party adomaincan register namemostly and probably only under However, in the case if two parties having dispute over the domain name, then the then name, domain the over dispute having parties two if case in the However, 143 1217-8 (Torsten Bettingered., Oxford University Press 2005).For instance except from nationals and France, in France, Country Overviews: Hungary, in D OMAIN N AME L AW AND AW D 139 33 OMAIN P RACTICE 138 , however, this priority right mostly refers to N AME : A N L I AW AND NTERNATIONAL 141 P If a party have a complaint a have party a If RACTICE H ANDBOOK : A N 140 I NTERNATIONAL 282-5(Torsten CEU eTD Collection Kyrgyz Republic, namely Atan Consult LLC. 145 panelist of the opinion contributed to the badin faith. of cybersquatting of behavior pattern Such by NAF). (considered and concerning specifically respondent, of the involvement the with cases earlier the consideration into took also panelist The faith. inabad acting thus it, he registered nevertheless trademark, complainant’s the links led to that the complainant’s noted panelist the competitors’ Additionally, websites. use. fair or Thisfact indicated noncommercial that alegitimate the making respondent wasnot and knewname, about domain the the offered only links to other websites.Moreover, the panelist stated that the respondent was not commonly known by and domain name interface at legislative and judicial levels. judicial and legislative at interface name domain and trademark streamline the current to beproposed will as well recommendations as specific yet), with some of cases of trademark and domain nameinterface interest the panelist contended that there was no was there that contended panelist the interest decided that the disputed domain name was identical to the complainant’s trademark. On the issue ,of legitimate which is identical with the trademarks registered by the complainant. (“respondent Republic Following Kyrgyz of the UDRPcitizen a Andreev, thepanelist Mark (“complainant company States United the Union, Credit Alliant between arose dispute The 2007. 15, October Arbitration WIPO in found been has Center database ofcitizen cases, notably Kyrgyz Alliant Credit a Unionv. Mark Andreev (Case No.D2007-1085) involving considered on dispute name domain about information available 144 are. whatis parties domain conflicting as to the andwhat the name however,courts, so farany without rendered decision of courtthe and without any information in Kyrgyz namesisbeingconsidered related to domain fact that Given only dispute the one domain namesin the Kyrgyz Republic thatwould facilitate thejudicial andreview justice? andlaws clearly-formulated there well-developed regulating interface the of trademarks and Are WillitRepublic? followtaken by approach the UDRPpolicy countries the discussed? or Information regarding these cases was provided by the patent attorney law firm, conducting its activities in the This statement has been made based on the fact that no information is available at this point. The only publicly What approach will aKyrgyztake should court such occurindispute Kyrgyzthe bona fide 34 offering of goods because domain the containedname and ”). The respondent registered domain name domain registered respondent The ”). 145 (those that did not reach the courts 144 The next Chapter willdeal Chapter The next ”), and CEU eTD Collection Internet (domain name) (the “Procedure service marks, appellations of places of origin of the goods, and trade names as an address onusage The Procedure of to beinfringement the of rights. trademarks, trademark owner’s in the with markconfusingly similar a of trademark asan the owner address in is deemed Internet the benow considered. andcommunity, betweenthe interface trademarks the namesin domain Kyrgyzthe will Republic and Union European of experience and Republic) Kyrgyz the of one the with similar framework legislative in the (a country with RussianFederation resolution the name domain dispute law), and aswellin as Internet experience developed trademark evolving andprogressive well- most the with country the also but born, was Internet the where country, the as only and RegulatoryFramework in Dispute Resolution .kgTLD:Legislative &DomainNames Trademarks 3.1. parties on trademarks, ornames, copyrights or the laws of the Kyrgyz Republic. according to the decision of the court or other circumstances orother court ofthe decision to the according the domain name until there would be clarifications made and informationspecified or it has a right to cancel it http://www.domain.kg/. According to Clause 3 of the Regulation the Administrator has a right to stropalso, Regulation delegationfor ofRegistration of a .kgSee Domain Name trademarks. to only be (themade shall “Regulation the reference Thesis, this of purpose the for However firm names. and goods 146 in “Ruleson (the zone” <.kg> name registration on domain new“Rules Kyrgyzpatent, agency governmental the its transferto and <.kg> of the administration the debates regarding recent registration and use of identical or similar with a trademark domain names “Administrator (the functioning technical domain names. Under Kyrgyz law,organization registersthat domain names and maintains their C The Procedure extends its scope of applicability to trademarks, service marks, appellations of places of origin of oforigin of places appellations marks, service trademarks, to applicability scopeof its extends Procedure The HAPTER Taking intoTaking consideration U.S.anti-cybersquattingthe legislative framework (known not As was briefly described in Chapter 1, unauthorized use of a mark identical or III. T RADEMARKS K YRGYZSTANI ”) contains so called “safe harbor” for administrator of called administrator for harbor” “safeso ”) contains & ”) is not liable for infringements arising from D 35 OMAIN if the domain name holder violates the rights of third L AWS N AMES ”) posted on the AsiaInfo web-site at web-site AsiaInfo the on posted ”) I NTERFACE UNDER 146 . However, with the CEU eTD Collection 150 Bettinger 149 trademark-liability > (last visited in October, 2009). 2009) 148 147 andconsequences Howits decision remedies? is goingtobe enforced? At same the in time, the possible whatarethe award or damageslatter can the what Appeal, by of resolved Board the is case the If proceedings”? for “court must tothe court turn Board the issuethe or consider intervention.” indirect participant[…] if injured corresponding party information provided and demanded domainregister name trademark infringing rights. were In whatliability excludedis in arises France from if better? will registrars case customer liable registration for under Rules, the registrar is notliable this for under UDRP. the Question interest of intellectual third namely parties, of rights. holders the property the with nameisconflicting chosen verify the domain whether arerecommendedto registrars thus, atrademark, with conflicting name a domain register if they liable be might registrars expected <.kg> registration”) are to beadopted. According tothis Rules, thedomain name its regulations.” in be Appeal trademarks of examinedbyBoard […]shall Kyrgyzpatent accordance the with of isit “court proceedingsthat specifically, regard with written todomainname andregistered Rules, the of wording the regarding some ambiguities are there However, Kyrgyzpatent. the provisionsthe of Rulesthe provides for clause on dispute resolution by Board of Appeal under one force, would into of if <.kg> enter registration available,on however, Rules the procedure liability registrars.of Clause 4.2, the Rules on <.kg> registration. Reinhard Schanda, . Intellectual Property Watch, Property Intellectual . Clause 4.2, the Rules on <.kg> registration. available at provided definitionof the “domain” is the following: zone of Internetdomain name registration authority as part of an electronic address on the Internet.designation which At is registered with orthe assigned AsiaInfo by any domain name registrar, domain name web-siteregistry,otheror at < 151 “KG” “administrator”, and“.KG“IP “domainzone.” name”, address”, comparison to in definitionsthe available Procedure,especially the regard todefinitionswith of in name. interest domain the legitimate again there thus, discussedabove, decision willbebasedon Regulation the The court decision. court of the is no protectionshould the Board of Appeal be disregarded? The transfer of the domain name will be on the basis for thus legal force,into the a decision entering court to is a reference Rules there the 6.6of clause people who rightfully use their domain name, i.e. has trademark owned bythe plaintiff, (b)registration or and use namea domainof infringes has toprove either of following:the (a)adomainname isidentical confusingly similarwith or a guidelinesjudges for considering trademark anddomain in namesdisputes, particular, aplaintiff registration. badgood or faith will beconsidered of asviolation and rightowner’s trademark refused affiliations. religious or dignity human insulting character inhuman of calls expressions, obscene registration will contradict to the public policy, principles of humanity and moral (including domain name and existenceof trademarkthe […];(b) domainname has been reserved; (c) the forprovide grounds therefusalinclude: of registration namedomain that existence (a)the of Clause 4.4, the Rules on <.kg> registration. Forexample, 15 U.S.C. Section1127 provides the definition of the domain name as any alphanumeric The Rules also contain the list of definitions, which is clearer and more precise in Coming back to the existing legislative framework, the Procedure also Procedure the some backComing provides framework, legislative existing to the 152 in registered whether general,any trademark and are grounds too the However, 37 151 Moreover, theRules CEU eTD Collection “ARIS” for certain classes of goods includingscenario. is casewith different there another However, classname. domain in the oninterest particular no is providing ifthere especially nerves, and money time, save will of consultations, itlitigation is much giveeasier to upthe right in domainthe name claiming without anything.trainings It to As willing is the directly itself theengage population trademark not owner. to into to the name domain the transferred right, owner’s trademark of violation the for consequences the of informed being owner name Domain future. in the name domain identical or similar any register to going isnot latter the that holder name domain the from declaration a receive to wanted and name domain the receive to willing was owner trademark The name. domain the over rights proceedings in the eventinitiate court The trademark domain wasready to nameowner owner. if the domain name holder resists or in any way refusesits consequences. to waive his than law,correct such rather of prevent to it theapplication is better however, laws, existing the of amendment for the incentive aprecedentandcreate possible thisfirst, might At diminished. domain name, casethe is a butif one, cybersquotting clear otherthe case party to the isfide inbona useof the at the result seems to be unfair. The domain name holder’s right would be does not yet reached courts of the Kyrgyz Republic. However, it is considered that there is low probability of 153 “ element first either show to has guidelines are nothelpful. exclusive rights of trademarkthe owner.However,under more scrupulous considerations, these The case is at the stage of negotiations between the law firm representing trademark owner and the agency, and agency, the and owner trademark representing firm law the between ofnegotiations stage the isat case The German German company registered owner in trademark 2000 mark andthe owner of UPS registered issue trademark There wasan the between According tothisis regulation, trademark holder better off as in court proceedingsthe it or ” the second one. From the one side, it is clearly beneficial if beneficial is clearly it side, one the From one. second ” the 38 153 trademark Kyrgyzstan in CEU eTD Collection 154 theirs. is think to tend they that upsomething giving in reluctant more are winning the case since the other party is the governmental entity, and governmental entities in the Kyrgyz Republic markissimilar used assuch.” o Internet the abbreviation. said the under known being and implementation, of process the at and implemented governmental agency the on territory of Kyrgyzthe Republichaving multiple projects and properly advertised its(specifically sign can be foundin almost every village in city)the well-known isfamous, it as name domain the up give voluntarily to willing isnot Agency the that is probability a higher There be transferred. namehasto domain the name,thus domain the conditions. Asprevious indicated atthecase athandisit is the clearthat identical trademark to prove the of one must canand the owner court While tothe referring owner. for trademark the regardingagreement domain the name. Germanconclude in shouldbethat casewas company noted willing present alicensing to the the consumer confusion, in the way of some affiliation or connection between the companies. It by offeredof agency tothose amountmaking creating are similar and company, some the thus willingpossess to name,from domainthe and, apart considersthat, services that by offered the “ARIS”. TheAgency domainThe . name registered companytrademark is owner if “ARIS”, thus letters used inLatin to totally trademarkcorresponds registered the namely is name Agency’s the of abbreviation the and in Communities) Investment and of Development “Agenstvo poRazvitiyui Investirovaniyu Soobschestv (which can be translated as Agency on Kyrgyzstan having language Russian designation and its Russian letter abbreviation, namely publicthe large at in fieldthe of In computers. 2003 governmental legal entity is in created Kyrgyz Republic s makes it clear that it is automatic infringement of as of rights, entity the the ithas infringement clearis smakes it Republic Kyrgyz that automatic M AC Q UEEN It was noted that “there should be no automatic case of infringement if an identical if identical infringement or case of an “therewas noted benoautomatic should that It beneficial more are Republic Kyrgyz the of territory the on in force rules applicable The , C ONTEMPORARY IP, at 686. IP, 154 39 However, the existing law’s stipulations in the stipulations law’s existing the However, CEU eTD Collection structured metadata about awebpage, that is, data about the material contained in the webpage.” 159 158 Bettinger can attach metatags can attach 157 otherpartythe namely Gmbh –can thesameregister in domain the thirdlevel, e.g. District. of the website official the not palintiff’s website on the homepage of his website and expressly pointed out that his website was party,private and District defendant, Adnetof as plaintiff, as“defendanthad placed alinktothe the between nameto domain with regard of confusion denied existence that the 156 mark, can betheusage the disclaimer. of the asa in nametrademarkcompany of another have and interest parties andboth the a legitimate using the internet would gain from reading the website” a person that understanding the and of website the owner the intention of the case, particularly the Internet. UK court considered that in order todefine use “all the circumstances of a particular 155 be “ be to considered consideration. into be taken should priority of rights betweenbeginning the consequences of civil, administrative or criminal nature. Even thesethough there is clear two entities, applicable theotherpartyrules beinwill andprobably violation, bear aswas at expressed the bona fide use the to according and country, the of theterritory and on trademark it protected has that show to good faith of both parties still M Moreover, the registration under the .com.kg domain is free, formore information, see < nic.kg > Reinhard Schanda, Ibid Ibid AC , at 689. , at 687. Q UEEN ed., Oxford University Press 2005). Another solution for this kind of cases, where two existing marks, namely one as a For instance in Britain the English court considered that the use of the trademark cannot thattheuseof trademark considered instance court in English the For Britain , C 158 ONTEMPORARY , as nothing it prevents from doing this onthefirsthand, andon otherthe sideit Austria, in 159 use to its website, therefore, being listed as first as possible in the list of list in the possible as first as listed being therefore, website, its to ” only because anyone in any part of the world can access that site from site that of world can inany the access becausepart anyone ” only D IP, at 760. “MetatagsIP, at elementsare of HTMLthe language used toprovide OMAIN N AME 157 L nameThus, , owningdomain ARIScompany AW AND 156 40 infound instance,For Austria Supreme Court P RACTICE 155 : should be intotaken account. A N I NTERNATIONAL H ANDBOOK 97 (Torsten CEU eTD Collection introduced into Trademarkthe Law in 2003. 162 161 Trademark raise Law does issues, numerous which beremain to unregulated. Inaddition, this to absence legal of of issue.regulation the issue.the of unauthorized as an Provision a mark regarding appeareddue address in Internet the regulate efficiently not does state current its in law the as case such in adjudicating difficulties have will court Kyrgyzstani the available Procedure the to only referring thus, name, domain the be which cannot said thecase about athand. involved Both companies havelegitimate a claim Internet, in the address an as owner trademark the of mark a with similar confusingly or identical 160 Trademarkconsideration into factLawprohibitsthat takingthe andtrademark owner Agency, the legitimate interests in have name, domain especially case and settle the dispute. In this case we can say ɫ that these two companies, of the even are if trademarknot protection requires goods similarthe is there and consumerno namely German in modern Butanother issuemay society, related. the when “dilution” of owner somehow arise are companies two that conclusion the to come cannot one it reading through hence, Agency, of the ARIS canfind of acharter one on website the Moreover, benoconfusion. will there for, is and is one results what search aware of looking the through even webpage accesses the to appear in a search amounted causing therewasnoconsumer asite result use, mark totrademark confusion: asametatag does not suggestconfusion or trademark use,hence infringement. UK indicatedcourt that“even if use the of a any connection withresults provided bythe search engine. However, this might action amountto ahigh level of anyone else.” onfusion. C Provisionregarding use the of domain nameidentical orconfusingly similar asan address Internetin was Ibid ATHERINE , at 691. What if the case will reach the courts of the Kyrgyz Republic, how they will decide the 161 S EVILLE , EU I NTELLECTUAL P ROPERTY 162 L However, the so-called Internet provision of the AW AND 41 P OLICY 211(Edward Elgar 2009). unauthorized use of mark useof a 160 if user And to CEU eTD Collection name 164 Bettinger 163 an assuchor name enterprise.” bearerof the name as it function of with of a person was “designation the ifita name to the protected referred to “Bundesheer”, namely “federal army,” by issue was equating resolved similar Austria In forbodies. its accountable astheentity being Republic Kyrgyz the hand to other the reference freedom on and of (unfortunately) on speech handis one the with collapse other, protected each up a forum or some“kyrgyzgovernment.kg” or“jogorkukenesh.kg” “parliament”/ (= council”) “highest and will set critical discussionusage in domainthe What name protection. if receives domain registers nameone on theis it presentonly Arethe regulation trademarks Under they or courts. parliamentprotected? government/parliament itself.though the decision is criticized, this is also apossibility of resolving the case. Here two ARISissues case is very similar to the case which was also discussed above. Even person who posted person who posted on web-sitethe information about hunting the activities in Russian private to belonged it name domain the restore to decided newspaper the When person. other registration was name domain The Kyrgyzstan]. of [Word was Kyrgyzstana” “Slovo notnamely newspaper, local the used and not working, and assumingly it waskind of domain names and would comments beconsidered contrary publicto the policy issues. free for registrationentitled as beingin noway related to Federalthe Army.most probably, But usage the of this by any not is latter the which to advantage an name domain the of owner the for provides discussion usage of word“bundesheer”the in domainthe name andproviding the foropportunity Kyrgyzpatent, Reinhard Schanda, (March 16,2010),available at < http://patent.kg/en/node/1591 >(lastvisited inMarch, 2010). ed., Oxford University Press 2005). Moreover, there is there Moreover, likeissuea second governmental the regarding designations, There is regarding official another domaindispute the name Chief Editor of “Slovo Kyrgyzstana Plus” Newspaper requests “AsiaInfo” to return its domain Austria, in D OMAIN N AME L AW AND 163 42 Moreover, in this case Supreme Court held that Court in Supreme Moreover, this case P RACTICE : A N I NTERNATIONAL H ANDBOOK 164 thatbelonged to 93 (Torsten CEU eTD Collection 165 policy Kyrgyz in the of field Republic massthe of media.” domainname «sk.kg», whichis information the state official ,contradictsresource to publicthe statedissue. that“the tothisKyrgyzpatentinvolvedpart their on patent Kyrgyz the transfer of Federation. The publishing houserequired the transfer of domainthe name backtoitand considered unauthorized use of trademark in useof unauthorized ifconsidered instance,trademark Internet? For the selling cars a web-site use unauthorized of familya person’s name. on this issue, silent are thus,laws The name. domain that selling itof intent the is with person not that of clear whether the itwith name would domain the registers knowingly beperson another consideredbut is), still (and days his as a bad faith registrationissue personal with regard to names. If is person the longer no alive, buthe wasfamous during and large. public the isThere or his president another tothe servicesto andofferits at related family be trademarks. Secondly,he could have in faithgood a put disclaimer thathe is notin any way issue firstplaceas the and considered on not aspersonalnamesarenot protected to trademarks hewasstrongly nottodo so.There is on However, advised legislation no this similar activities. and offer his there photoservice,i.e. taking of pictures differentevents, filming some or other way related to in any not the however, familysurname, same the having person, One is Bakiev. of the president the of surname president was willing to register is person the not only the in one Forinstance, givencountry. the in the Kyrgyz the Republic domain name as legal or persons toother entities. transferred freely be namecould domain the otherwise, name, domain its further posses to willingness latter’s the to as owner name transfer of domainthe should name, andadministrator first registrar inform previousthe domain Ibid. What ifWhat a trademarkis in used Will four-level and three- names? be domain that In relation to the issues of personal names, it can be said that sometimes the surname of surname the sometimes that itcan besaid names, personal of issues tothe relation In 43 165 It was stated also that before any before also that was stated It CEU eTD Collection political campaigns. Jacqueline Lipton, extort money foruse of the domain name, and (e) conflicts about competing interests in domain names relating personalas to names, cultural or geographicalsuch interests, in particular interests, domain names cybersquattersand non-trademark attempting with to people between conflicts (d) way; ornegative a positive in either people, those on comment to wanting those and names personal corresponding with people between names domain over competitions (c) generally; more interests speech free to assert wanting andthose holders trademark between competitions (b) them; parody or criticize to wanting those and holders trademark between competitions (a) as, such disputes, interests that should be protected by the domain name system. These legitimate interests may result in new kinds of 166 any no wouldthat legitimate allowprocedure to trademark the owner receive domain the name of the domain name identical or confusingly similar is terminated by the court’s decision, there is rights of a trademark owner? Or is it enough to merely register the domain name, thus “use” it. domain name andposta “undernote construction” andsuch registration will not infringe the such may it a registrant meanmeans.register Does that the trademark similar with confusingly use? have latter priority who theperson the right suchdomainforname over registered his personal and cultural religious with or politicians and celebrities of values.names the with identical names Whatpersonal to if a person has the relates interests issue legitimate the regarding Another be decided? trademark owners legitimate identical the between dispute namethe will How name? domain identical the within registering preference be given the famous politician?for different Will classesthe of goods and services or firm name? Which of above. theissues the on trademarkis silent legislation current owner should names, will useof the such headings be considered asunauthorized use trademarks? of the The etc.), such as ,or which is a normal structure for sub-domain and Toyota, Honda, BMW, models of Mercedes-Benz, has byvarious cars (like, online headings It should be noted that there are many kinds of legitimate interests in domain names other then trademark then other names domain in interests of legitimate kinds many are there that noted be should It 166 Furthermore, if the legitimate trademark owner wins the case in the court and registration wins casein the if court the legitimate owner trademark the Furthermore, The law notmake does itclear whatprohibition of use of namedomain identical or under ICGS isthe ARISAs with case, when the registered and sameone the trademark Domain Name Sharing 44 . See also See , Jacqueline Lipton, , Jacqueline Beyond Cybersquatting . CEU eTD Collection to use thereof as domain names. domain as thereof use to amended on May 15, 2001). However, perhaps stronger protectionof well-known trademarks is needed with respect Republic approvedby Resolution of Governmentthe of Kyrgyzthe Republic onAugust 24, 2000,No. 520 (as 167 fortrademarks; well-known protection explicit trademark”, “unauthorized use name of registrant”, namedomain confusingly identical or similar with “domain“cybersquatters”, name”,“sub-domain name”,“domain and name registrar” “domain for activity”, example,definitions of“cybersquatting formulated stipulate, clearly In should anewanti-cybersquattingadopt Lawand/or procedure particular, the procedure. Amendments and/orAdoption of Legal Acts: currentKyrgyzthe laws regulating trademark domain and name interface. of improvement to as made be can recommendations following the above discussion the Given Recommendations TLD:Selected in.kg Resolution Dispute and Domain Names forEfficientTrademarks Framework 3.2. the laws of the US, Russia, Europe, or UDRP what recommendations can come up? solutions can be extracted from the experience of other countries. Like it was discussedresolvename efficiently.equipped andpossible The domain and disputes probable to trademark above on ill-yetlaws Kyrgyz current the are show that name they interface, clearly anddomain trademark Probably, after the adoption may be usedby for orcybersquatters parties third registering this particular domainname. owner of trademark decision the between and apossibility court’s the Theperiod automatically. Trademark Law doesnotcontain any “domaindefinition of name”, and“cybersquatting”. Infact automatic) of cancellation the and transfer name. (perhaps, domain As the was discussedearlier, faith registration; defenses available toregistrants; strong remedies, such as forfeiture, Currently well-knownthe trademarks are protected by Regulationon Well-Known Trademarks in Kyrgyz the These major arethe gapsidentified in currentKyrgyzthe laws attempting toregulate There isaneedamendLaw and Trademark to the 45 167 bad for grounds non-exhaustive CEU eTD Collection (TorstenBettinger dispute might be solved through mediation, if not then the dispute can be submitted to submitted be can dispute the then not if mediation, through be solved might dispute for the<.cz>ccTLD” procedure resolution has “conflict latter a the however, not recognizeUDRP, the same WhileKyrgyzstan does disputes. way Republic, as Czech forsimultaneously serve asguidelines judiciary in the and trademark resolving domain name Therefore, perhaps a better solution will be adoption of UDRP-type policy, which will ICANN-accredited dispute resolution centers will be burdensome due to its relatively fees.high by of the one UDRP resolution under dispute However, and registrant. a registrar between is resolution dispute toinclude UDRP reference to applicability in executed an agreement Adoption ofUDRP or Similar Policy: inlaw of understandingterms trademark anddomain is interface required. shouldand Procedure be for developed thejudiciary; as well capacity as of building judiciary the Guidelines for Judiciary: campaign. an election of context in the in particular, communications, political of facilitation privacy, personal of protection Internet, the on speech free of promotion as such well, as provisions social account in which shouldvalues, beexpressed trademarkthe and namestatutory domain identifying bad faith. 169 168 nature of domain names. the correctly reflect not yetdoes formulation the found intheProcedure name”is “domain the word“domainthe name”is notatall mentioned in Trademark Law.the The only definition of Renata Potmakova, Regulations. and ACPA and Law Kyrgyz under definitions name of domain comparison see, instance, For However, while having some concerns as to amendment it is necessary is into it amendmenttake necessary to asto some concerns having while However, ed., Oxford University Press 2005). Czech Republic, in 168 Special Special based on guidelines amendedthe new and/or Trademark Law forcontains Procedure grounds nor the Law TrademarkNeither D OMAIN One of possibilitiesthe for trademark and domainname N AME 46 L AW AND P RACTICE : A N I NTERNATIONAL 169 H , namely, the namely, , ANDBOOK 219 CEU eTD Collection curative measures, nevertheless if used together with transfer and cancellation of the disputable domain name. domain disputable of the cancellation and transfer with together used if nevertheless measures, curative 172 (last visited in March, 2010). 171 personal name, personal names versus cultural and religious words and phrases. compulsorythrough licensing arrangements which shall be applicable topolitical versus private inapplied are legitimatecases wheninterests involved. competing Such sharing can be done Domain Name Sharing or Compulsory Licensing Arrangements: and lawyersspecializing in law.intellectual internetproperty and KyrgyzRepublic of the Operators of Communication in informational general,technologies can bein established by and administered Association the namely an arbitration forpanel resolution any of relateddisputes todomainnames or Creationa SpecialArbitration Tribunal: of andtrademark owner name domain registrant. alternative dispute resolution, it then should provide for all protection possible for both 170 arbitration. Jacqueline D. Lipton, at be found can Operators of Communication Association the about information detailed More Ibid . 170 However, if the Body of Appeal of Kyrgyzpanent is going to perform functions of Beyond Cybersquatting . Professor Lipton further notes that these are preventive rather than rather preventive are these that notes further Lipton . Professor As an alternative dispute settlement mechanism, settlement dispute alternative As an 47 171 technicalof experts withinvolvement Domain name sharing name Domain 172 can be can CEU eTD Collection and competent to resolve disputes related to domain nameregistration. to related resolvedisputes and to competent by are accredited who tribunals, ICANN in several underquasi-arbitration UDRPareresolved disputes The zones. top-level domain to their respect country-specific UDRPwith the accepted adopted (“UDRP Policy forResolution such genericWith of rise trademarkthe and domain namedisputes Uniform Domain NameDispute top-level rulesthrough and by policies adopted isICANN, which themain body domaingoverning names. with to names.domain are regulated names exists respect Domain international-level treaty domains as .com, .org,values. .net.issuesnon-trademark freedom relatedto speech,of personal andprivacy cultural and religious Some countriesitscybersquatting related various and forms. Disputes todomain alsoraised names anumber of voluntary arise.domainto the started challenges names globallybecause be offer.uniqueness of of However, opportunity presentthe attractive to was within protected territory andparticular tocertain applicable andclass of goods services saw agreat be opportunity presentto world-wide. trademark For rights being specifically feature trademark of names, owners anddomain of importance of Internetglobal the growing challenge to trademarks rights was posed with the development of domain name system. Because recent Comparatively level. legislative the at challenges modern to adoption and improvement Whereas trademarks are protected under minimum established trademarksWhereas standards, international areprotected no Clashes between anddomaingave trademarks names birth phenomenonof the to its with associated time the all was law property intellectual of development The ”), namely document regulating specifically these disputes, has namely been disputes, regulating”), document specifically these C ONCLUSION 48 CEU eTD Collection clearly formulated provisions, including, butnot limited todefinitions (such as domain name, Kyrgyz Trademarknew draft Lawand anti-cybersquatting wouldfor that procedure stipulate UDRP;andresolution law.under caseit Russian is In this amend regards, proposed to the itbased improve on experiencethe foreign of countries, such as Unitedthe dispute States; possibility to review the existingKyrgyz laws trademarkgoverning and domain names and cybersquattinga is not wide-spread phenomenon in country.the This a provides remarkable present becauseat name interface and in area domain the of framework trademark regulatory advantageous position in of terms establishing and/or revising legislative an efficient and an in is Republic Kyrgyz the names), domain (or in Internet address an as trademarks developing case law Russian andsimilarprovisions regarding unauthorizeduseof statutory domain nameinterface and provide for efficient resolution mechanisms. Following the currently isthere need anurgent to revise current Kyrgyzstani regulatinglaws issues the of trademark and therefore, to emerge, started casesalready the However, decision. rendering withof result courts specifically regard todisagreementwith to UDRP panel’s decision domainon name transfer. in first the emergedarea with regard totrademark disputes, anddomain post-Sovietname the protest on the decision of the UDRP panel in the national courts. The Russian case law is perhaps mechanisms. tobe considered pro-trademark efficient owner UDRP and ACPA, even beingmechanisms efficient for trademark rights protections, are (“ACPA Act Protection Consumer Anti-Cybersquatting adopted that countries In the Kyrgyz Republic the issue of cybersquatting has not been yet considered by thePursuantto UDRPalosing of party a trademarkvs. domain name disputehastheright to While the development of the Internet started in the United States, it was one of the first 49 ”). However, both CEU eTD Collection Therefore, it is submitted that apart from clearly formulated statutory provisions the Kyrgyz the provisions statutory formulated from apart clearly is itthat submitted Therefore, domain names. relatedto disputes on in adjudication of judiciary system terms the capacity of is uptoKyrgyz court to resolve the issue. This raises another problem, whichmainly lies in poor canbea campaign) forsolution some above.should of situations the Yet above the casesarise, it (andfor sometimesthe instance period for temporary, licensingof arrangements election to political prior “Akjol”).the heparty registered therefore, a political domain name ; registration of a domainname identical to namethe of party, which(for instance,runs a forperson nameof a domain asfreedom );speech of registration , electionsis not satisfied withfamous Kyrgyz celebrity fashionor designer, wantstoregister domain(for name the services instance, of name identical a the Dilbar,a of to or nameMoldakmatova isAssol whose aperson, instance, (for company X, therewants a celebrity of name vs. name a domain as registered name topersonal or register ); name is a person’sthe religious name values is Akjol,(forwhich ininclude of cases names registered as particular personal a domainname vs.cultural and instance, a person may in consider andstipulate respectivelawsthe some issues, post-ACPA and post-UDRP whose Republic Kyrgyz The domain. in the name interest and right legitimate having is owner name domain Mokhammed wants regardtocompetinglegitimatewith to interests of several or regardtoa owners, trademark register domain protection of well-known trademarks, and strong remedies. explicit factors, faith bad of list non-exhaustive etc.), and use, unauthorized cybersquatting, It might be possible to, so to say, share the domain name in the form of compulsory of form in the name domain the share say, so to to, be possible might It will there Moreover, needbe strong to consider andin provide respectivelaws issues 50 CEU eTD Collection this work. in outlined shortly measures regulatory and legislative specific requires Republic Kyrgyz the of context inthe which interface, name domain and is trademark challenges and issues interesting issues examples andchallenges. of Oneof the interesting in such of resulting emergence interface thereof with and trademarks non-trademarkother issues. willcourts have need to understanding andknowledge of operation the of namesdomain and The information and communication developtechnologies with anunusual pace, 51 CEU eTD Collection 1999. 1. United Statesof America: (The law is stale since January 1, 2008). Places of Origin dated Goods” of September1992 23, No. 3520-1 and with amendments of 2002 2. December2007. 6, 1. Russian Federation: 9. 15, 2001. of Governmentthe of Kyrgyzthe 24, 2000,No. onAugust Republic 520,asamended onMay 8. 2004, No.19. Ministry for Economic Industry Development, Tradeof and Kyrgyzthe Republic onApril 13, 7. Protection of Competition” datedApril as15, 1994, amended on August 1,2003. 6. amended on March 30,2009. 5. March 17, 2009. 4. March 30, 2009. 3. Resolution of Governmentthe of Kyrgyzthe RepubliconJanuary No.31, 2007,26. of Places2. of Origin of of Origin dated Goods” Januaryof No. 7,14, 1998, asamended on February 27, 2003. Goods, 1. and Trade NamesKyrgyzstan: as an AddressLEGISLATION: in theB Internet approved by IBLIOGRAPHY 15 U.S.C. Section Anti-Cybersquatting1125 (d), Consumer Act Protection (“ACPA”), of Service MarksandAppellations “On Law of RussianTrademarks, the Federation Civil Code of Russianthe November 1994,asamendedFederation dated 30, on name ccTLD registration on domain .kg Project Draft Regulation Well-Known on Trademarks in Kyrgyzthe Republic approved by Resolution Procedure for Consideration of Unfair Competition Cases approved by Resolution of the and Development Activity, Monopolistic of Restriction “On Republic Kyrgyz the of Law Administrative Liability Code of Kyrgyzthe Republic dated August4, 1998, No. 114, as Criminal Code of the Kyrgyz Republic Civil Code of Kyrgyzthe Republic datedJanuary 5, 1998(Part II),No. 1,asamended on dated October 1, 1997, No. 68, as amended Marks,Appellations Service Kyrgyz of Procedure Trademarks, Usage of on the Republic on Law of Kyrgyzthe Republic“On Trademarks, Service Marks and Appellations of Places 52 CEU eTD Collection 5. 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Torsten Intellectual Property: of the one thirteen Property, of Intellectual Aspects Trade-Related on Agreement Law and Policy. and Servicesof Goods Classification Concerning theInternational The NiceAgreement New MadridAgreementconcerning the International Registration Marks, 1891& of Protocol Paris Conventionfor the Protection of Industrial Property, 1883. approved as Rules”) (“the Policy Resolution Dispute Name Domain Uniform for Rules Uniform Domain Resolution NameDispute (“UDRP”) as Policy by approved ICANN on Commission NoRegulation (EC) 874/2004 of 28 April laying 2004 down public policy 733/2002 Regulation No (EC) of Parliament European the and of Councilof the April 22 First Council 89/104/EEC No Directive of 21 December 1988toapproximate laws the of Internet and Commerce of Department U.S. the Between Understanding of Memorandum 53 CEU eTD Collection Research 2001.paper 01-05, Uniform Domain Resolution Dispute Name Policy, Stanford/Yale JuniorForum, Faculty 8. 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Available at SSRN: < Center. Available at < Decision ArbitrationDecision of Court of Saint-Petersburg and LeningradRegion Aprildated 20, WIPO LLC, “DenSo” v. (Japan) Corporation Denso AlliantCredit Union v. MarkAndreev, WIPOCase No. D2007-1085. WIPO Arbitration DecisionICANN’s “Go/No-Go” Concerning NewgTLDs,Progress vol.on Point, 16, Settling Conflicts in Digital CopyrightBulletin,Environment, vol. XXXV,No.4, Reidl, Paul W. E. & J. Gallo Winery, Understanding Basic Trademark Law: A Primer On Raghuvanshi, Raghvendra Singh.Maggs, Peter. Domain The ".us" InternetNameLitman J. The DNSDomain. PiracyWars: Trademarks and the Internet The Domain Name American System, - 4 J. SmallA Threat Journal of Comparativeto Trade Celebrity JacquelineLipton, A inParadigm forRights D., Cyberspace: Personality Law, Marks. Lipton, Jacqueline D.Beyond Cybersquatting: Taking Domain Past NameDisputes Lipton, Jacqueline D. AWinningfor and Youtube Solution Corresponding Utube? 55 Case No. D2003-0482.WIPO Case No. CEU eTD Collection http://cyber.law.harvard.edu/property00/domain/legislation.html >. Lanham ActS. 43(d), 15 U.S.C. S.1125(d) is available at < 3. http://austlii.org/austlii/guide/current/20030315--2.html > 2. > http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2147 available< (October 6,2008), at Act Protection 1. sources: Internet 15. 14. Arbitration Forum. . 13. http://altlaw.org/v1/cases/413286 >. 12. >. http://www.ciec.org/SC_appeal/opinion.shtml 4. Union Union (“ACLU”) 11. http://domains.adrforum.com/domains/decisions/471047.htm >. 10. >. 2003-ot-11.11.2008 November 11,2008,available at. at 7. http://kolosov.info/cases.php?p=40 >. 6. 2005; available< http://kolosov.info/cases.php?p=40 at >. 5. < http://internet-law.ru/intlaw/domens/denso2.htm 46111/2003 available at >. 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