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Computer Winter 99 March/April 2002March/April 2 No. 19, Volume S t a t e Bar of Mich igan Co mput er Law Section [email protected] Raine J. Paul Editor http://www.michbar.org/sections/computer/ topic. law andtolearnagreatdealaboutthefeatured with otherswhoshareourinterestincomputer attend. Itisagreatopportunitytomakecontact email andregularmail.Iencourageallmembersto Newsletter andinmaterialsyouwillreceiveby mation abouttheluncheonwillappearinthis the helpofpast-chairLarryJordan.Moreinfor- is responsibleforthearrangements,thistimewith Marriott inLaurelPark.Onceagain,KimPaulson tinue thattradition,onMay23,2002attheLivonia gin theCouncilbusinessmeeting. always verydifficulttoendtheluncheonandbe- anditis ways ourbestattendedeventoftheyear, courages attendeestorelaxandmingle.Itisal- nent inthefield.Equallyimportant,formaten- always verytimelyandthespeakerspromi- The discussionis ande-commerce. crime, UCITA luncheon. Pasttopicshaveincludedcomputer the arrivalofSpringwithitsannualnetworking lead andtaketimetoenjoythechangeofseason. refuses toworkatall.PerhapsIshouldfollowits more timethesedays,andwhenItakeithome, Sending printjobstonetworkprinterstakesalot itappearstohaveabadcaseofcabinfever. Winter After along whether itisSpringorSummerlately. 3 This year’s networkingluncheonwillcon- This year’s theComputerLawSectionmarks Each year, Even mylaptopcomputerisconfusedasto Assessing the UDRP: Trademark Owners Trademark Assessing theUDRP: are UnfairlyFavored Springtime thoughts. Your councilalwayswelcomesyourinput. Your thoughts. tact informationisavailablethrough ( usefulbenefits.Contactme section canprovideyouwithtimely, allbenefit. We discussed forthesectionnewsletter. at acouncilmeetingandtoprepareparagraphortwoonthesubjects relevant topic.Inreturn,weexpectthemembertodiscussseminar section membersmayseekreimbursementforattendingaseminaron seminarreimbursement policyunderwhich implemented thesection’s for this. well asourcoreevents.Ileaveitforotherstospeculateonthereasons (and we’rehappytotryoneagain),butnothingattractsanaudienceas havetried golfweekendslikeothersections We cational opportunities. prefer theserelativelybrief,highlyinformativeandfairlyfrequentedu- attendance atothereventswehavesponsored,isthatourmembers our councilmeetingsareotherexamples.Ourimpression,basedupon ICLEseminarsandopenprogramsat Award, Writing Annual Ed Langs the This newsletter, concern thatitprovidevaluetosectionmembers. [email protected] In themeantime,gooutandenjoyniceweather. So, weurgeyoutoshareanyotherideashaveashowthe Of course,thecouncilisalwaysopentonewideas.Lastyearwe The networkingluncheonisagoodexampleofyourcouncil’s In In In In In the News 15 Spring NetworkLuncheon ByRaine, J. Paul Registration Form ) oranyothercouncilmember(con- Attorney at Law at Attorney www.michbar.org ) withyour ... March/April 2002 Michigan Computer Lawyer is published bi-monthly. If you have an article you would Register Now like considered for publication, send a copy to: Paul J. Raine The Annual Spring Attorney at Law PO Box 99773 Networking Luncheon Troy, MI 48099 is scheduled for [email protected] May 23, 2002. Statement of Editorial Policy The aim and purpose of the Michigan Computer Law Section of the State Bar of Turn to page 15 for Michigan is to provide information registration relative to the field of computer law, and other information that the section information. believes to be of professional interest to the section members. Unless otherwise stated, the views and opinions expressed in the Michigan Computer Lawyer are not necessarily those of the Computer Law Section, or the State Bar of Michigan. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ComputerComputer LawLaw SectionSection ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Officers Chairperson—Jeffrey G. Raphelson Chairperson-elect—Anthony A. Targan Secretary—Frederick E. Schuchman III Treasurer—Sandra Jo Franklin Council Members Ex-Officio Patrick D. Berryman Janet P. Knaus Claudia V. Babiarz Michael S. Khoury Chadwick C. Busk Bernard T. Lourim Thomas Costello Jr. J. Michael Kinney Bettye S. Elkins Paul J. Raine Kathy Damian Thomas L. Lockhart Christopher J. Falkowski Jeffrey G. Raphelson Robert A. Feldman Janet L. Neary Sandra Jo Franklin Jerome M. Schwartz Mitchell A. Goodkin Steven L. Schwartz Kevin T. Grzelak David R. Syrowik William H. Horton Carol R. Shepard Dwight K. Hamilton Anthony A. Targan Charles P. Kaltenbach Mary I. Hiniker Gregory L. Ulrich Alan M. Kanter Commissioner Liaison Immediate Past Chair J. Cedric Simpson Lawrence R. Jordan 2 Michigan Computer Lawyer Assessing the UDRP: Trademark Owners are Unfairly Favored By Tracy Zawaski, Second place winner of the 2001 writing competition Because of the importance of the Internet and develop- ○○○○○○○○○○○○ I. INTRODUCTION○○○○○ 3 II. BACKGROUND ment of the global information infrastructure, the U.S. govern- A. Internet Protocol Numbers and the DNS ment has tremendous interest in legitimizing ICANN and its authority over the domain name system (“DNS”).1 In particu- System ○○○○○○○○○○○○○○○○○○ 3 B. How the Domain Name System Works○○ 3 lar, the UDRP is a small step in worldwide Internet policy, C. History of the Internet○○○○○○○○○○ 4 which could eventually lead to worldwide Internet laws, such D. NSI’s Dispute Resolution Policy○○○○○ 4 as content control regulations, and mandating and enforcing 2 ○○○○ E. Creation of ICANN○○○○○○○○ 5 privacy and security policies. ○○○○○○ F. Structure of the UDRP○○○○○ 5 This paper discusses the implementation of the UDRP and G. Types of Domain Name Disputes○○○○○ 6 its effects on the Internet’s evolution. This paper takes the po- H. Collision between Domain Names and sition that the UDRP unfairly favors trademark holders because Trademark Law○○○○○○○○○○○○○○ 6 it permits the complainant to engage in forum shopping. In ad- dition, certain key terms are defined ambiguously, thereby al- III. ANALYSIS lowing arbitrators considerable discretion to employ their own A. Forum Shopping judgment with utter disregard to established trademark prin- ○○○○ 1. Average cost○○○○○○○ 7 ciples. The lack of legal guidelines compromises free speech 2. Favorable Outcome○○○○○○○ 7 3. Complainant’s Country and fair use rights normally associated with trademark law, and the UDRP creates conflicting laws that are not subject to the of Origin○○○○○○○○○○○○ 8 4. Decision Time○○○○○○○○○○ 9 checks and balances of customary judicial proceedings. For B. Ambiguously-defined Terms these reasons, the UDRP prefers trademark holders over non- 1. “Use” of the Domain Name ○○○ 9 trademark holders. ○○○○ 2. Defenses○○○○○○○○ 9 3. Generic Terms ○○○○○○○○○○ 9 II. BACKGROUND C. Precedent Problems○○○○○○○○○○○○ 9 D. Reverse Domain Name Hijacking ○○○○○ 10 A. Internet Protocol Numbers and the DNS System Every computer connected to the Internet must have an IV. CONCLUSION○○○○○○○○○○○○○○○○○○○○ 10 Internet Protocol (“IP”) number to send and receive informa- tion.3 For example, the IP number for one of the servers at Wayne State University (“WSU”) is “141.217.1.15”.4 Rather I. INTRODUCTION than typing in this number to access the WSU website, how- Since its creation, the Internet Corporation for Assigned ever, an Internet user can type “www.wayne.edu” to achieve Names and Numbers (“ICANN”) has faced considerable criti- the same result. This is possible because of the DNS,5 a sys- cism and controversy, largely on account of its Uniform Dis- tem that maps IP numbers and domain names to make it easier pute Resolution Policy (“UDRP”). Proponents of the UDRP for Internet users to navigate the World Wide Web.6 favor the policy because it facilities resolution of domain name disputes; however, the benefits may well be outweighed by the B. How the Domain Name System Works costs. The policy extends the rights of trademark owners to an The DNS is a hierarchical mapping system that directs an 7 unprecedented and unwarranted level, at the expense of indi- Internet user to the desired website or email address. The vidual rights. DNS is divided into top-level domains (“TLD”) such as continued on page 4 3 March/April 2002 “.com”, “.edu.”, “org.”, “.ca”, etc.8 Each TLD is divided into by other government agencies, universities and research facili- second-level domains (“SLD”).9 The SLD is the part of the ties. This “network of networks”26 became the Internet as we address immediately preceding the TLD, such as the term know it. “wayne” in the “www.wayne.edu” example. The SLDs are Until about 1984, the Internet was used almost exclusively further separated, and so on. When a person types an alphanu- for research purposes, and there were few enough computers meric Uniform Resource Locator (URL), which is the entire connected that a formal organizational system was not re- phrase following “http://”, the host computer will translate the quired.27 However, since the Internet is decentralized in nature, URL into an IP number.10 a properly-functioning addressing system is essential to prop- At the very top of the Internet hierarchy is the “root file.”11 erly direct Internet communications.28 Therefore, when it the The root file is a single data file that contains the list of comput- name list became difficult to maintain,29 scientists, including ers that hold the master lists of TLDs.12 Several “root servers,” Dr. Postel, created the DNS.30 Management of the DNS, along which contains information about every entry in the DNS, with various other Internet infrastructure functions, was con- serve the root file.13 For example, in the “www.wayne.edu” ducted
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