CEU eTD Collection © Cent © Hungary 1051 Budapest, Nador Central European University PROF COURSE: SHORTLL.M. THESIS ESSOR: Caterina Sganga ral European University March 31
Intellectual Property Law The Relationship Relationship The between Domain Names and Trademark Law
utca 9.
, 2014 by
Adam Dunn
CEU eTD Collection Chapter 3: Cybersquatting ChapterTwo: Trademarks Chapter One: Domain Introduction Abstract Table of content 3.3 US 3.3 Cybersquatting Law Cybersquatting 3.1 Definition German 2.5 Trademark Law United 2.4 Kingdom Trademark Law United 2.3 StatesTrademark Law International 2.2 TrademarkLaw 2.1 1.3 1.2 1.1. Domain NameHistory 3.2.1 Atypical cybersquatting case 3. 2.2.3 World TradeOrganization (WTO) 2.2.2 European Union Officevia for Harmonization in theInternal Market ( 2.2.1World Intellectual Property Organization (WIPO) 2.1.5 Agreementon Trade 2.1.4The Paris Convention 2.1.3History theof Trademark 2.1.2 Evaluating Trademarks 2.1.1 Whatis Trademark? a 1.3.1 ICANN 1.2.2 Top 1.2.1Domain NameSpace 1.1.1Importance of DNS and Mapping Addresses to Domain Names 3.3.1Anti – – – 2 History2 and issues
Trademark and History of Trademark ICANN and Domain Name InfringementClaims Domain NameSpace and Top Level
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31 31 31 29 29 29 26 22 20 19 19 18 18 17 16 15 14 13 13 13 11 11
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CEU eTD Collection Bibliography Conclusion Chapter 5: Solutions ChapterFour: Remedies 5.2 So 5.2 Jurisdictional 5.1 Issues 4.2.3 Germany 4.2.2 United Kingdom (U.K.) National 4.2 Jurisdiction 4.1 Dispute Resolution Outsideof Courts Germany 3.5 Cybersquatting Law United 3.4 Kingdom Cybersquatting Law 5.2.1 Principles Proposed as Solutions 4.2.1 4.1. 4.1.3 The Benefits of DisputeResolution Provider 4.1.2 Uniform Dispute Resolution Policy (UDRP) 4.1.1 Contractual Basis for 3.3.3 Defense toCybersquatting a Claim 3.3.2 Elements ofCybersquatting a Claim lutions to Cybersquatting and Jurisdictional Issues 4 The Drawbacks theof UDRP Process Dispute Resolution Provider
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57 56 52 50 48 48 46 46 45 45 44 43 39 38 38 38 36 34 34 32
CEU eTD Collection pointing outpotential benefits anddrawbacks each to solution cybercrime to solutions proposed of survey a with proceed then and cybersquatting, cybersqu while also surveying it practiceUS, UK,Germanyas pertainsand it law. international to Internet.with domain names ofthe inthecontext law incyberspace.Further, I going solutions examinepossible forward. will disputes Abstract j some first to discuss will relation I Five, in Chapter In available remedies for avenues discuss will I Four, Chapter In detailing cybersquatting, of overview an provide will I Three, Chapter In Cha In associated issues some and names domain of overview an provide will I One, Chapter In th of purpose The
atting through ICANN, atting through WIPO and (specifically in the context of cybersquatting) of context the in (specifically
pter Two, I will provide an overview of trademark law, its history and modern modern and history its law, trademark of overview an provide will I Two, pter s status today and Germany. inthe US,UK, is
paper is to is paper conduct of survey of the law concerning law the of survey of conduct
the national courtsthe national oftheUS, UK and Germany. 1
rsitoa ise rltd o combatting to related issues urisdictional
and the and .
ir
legal position under trademark trademark under position legal
domain name name domain
its while also also while
history
,
CEU eTD Collection 5 4 3 2 1 property inrelation domainnames. trademarkto rights intellectual of infringement potential to regard in issue no was there governmental, or academic what is name readable numbers. of set looking cryptic rather a being it to due information send to order in remember to humans for difficult extremely computer a is address One addresses. two are there system, this In about. a came System Name Domain Through current the error, and trial of another.process to computer one from point proper the to communication/information w Internet,a years the of formative During these nature. governmentalin ARPANET. as known be to came 1969, in initially computers four just linking network, experimental This States United Project the ResearchAdvancedthrough (ARPA).Government Agency U.S. the by funded, and conducted, research of result a as computers of network a between communication Intern the Rather, today. it from expect to come have we that purposes commercial the for initially formed not systems. protocol Protocol) Protocol/Internet Control (Transmission TCP/IP Introduction
Id. at 6.at Id. 6.at Id. 1 at Id. 1.at Id. Ltd. Pub2007). (Hart Law1, Name Domain International Lindsay, David
h Itre i a lbl network global a is Internet The
3
Throughout the 1970‟s and 1980‟s, the internet was primarily academic and and academic primarily was internet the 1980‟s, and 1970‟s the Throughout
et was birthed for the initial purpose of achieving an efficient method of of method efficient an achieving of purpose initial the for birthed was et
we now call a „domain name‟. So long as the system was purely purely was system the as long So name‟. „domain a call now we
4
The other address is a human a is address other The f necnetd ewrs prtn b wy f the of way by operating networks interconnected of – 2 read
able Internet Protocol (IP) address, which is which address, (IP) Protocol Internet able
- readable name. readable ay was needed to direct to needed wasay 1
The Internet was Internet The 5
This human This 2 -
CEU eTD Collection 9 8 Advertising 7 6 „One „Harrods‟, as cases notable such in law trademark apply typically which Courts, the through approach law relation in statute specific a instituted not has Kingdom United The mark‟. the from profit to intention an with faith bad in name domain a as claims. of class new the Anti federal the crime, introduced a cybersquatting making (ACPA), part, Act Protection Consumer its cybersquatting for States, United The threat. cyberspace emerging thr way detrimentalof theholder mark. to a in it using or mark the of distinctiveness the diminishing by trademark the to damage trademark. else's someone from goodwill the from profiting of intent the with used „cybersquatting‟. or sold registered, is called name domain a where be a is Cybersquatting to came what of instances considerable to led owner trademark have not did registrant name domain a that fact The name. domain a of holder the to right property intellectual of kind some awarding of purpose the with developed not was system holder give to order in developed initially law Trademarklaw. trademark and names domain between dynamic current Internet. the of commercialization Ian Tollet, Ian Varas, Christopher See Print. 2007. Hart Pub., Oxford: p.11. at law domainname International Lindsay,David. uh or sses world systems court ough
Lindsay, The increasing number of cybersquatting cases resulted in a proliferation of cases coming cases proliferationof a in casesresulted cybersquatting of number increasingThe p the about brought 1990‟s the However,
- Domain Names and Dispute Resolution, Dispute and Names Domain based based supra Cybersquatting, -
in Sealing the Cracks: A Proposal to Update the Anti the Update to Proposal theA Cracks: Sealing
at -
a 96 -
Million‟ and „The French Connection‟. French „The Million‟and .
s of trademarks intellectual property rights. In contrast, the domain name domain the contrast, In rights. property intellectual trademarks of s 8
ACPAtrademarka of use or registration „the as: cybersquatting defines
3 -
ie tu ncsiaig h nee the necessitating thus wide,
J. of Intell. Prop. L. ofProp. Intell. J.
6
t s rcsl ti cmecaiain hc st p the up set which commercialization this precisely is It
23
(2)
to cybersquatting, but deals with it in a common a in it with deals but cybersquatting, to 246, 246 246, 3
World Pat. Info. Pat. World rivatization of the Internet backbone, and thus, and backbone, Internet the of rivatization 7
- 261 (2008). 261 Cybers - cybersquatting Regime to Combat Combat to Regime cybersquatting 9
169, 169 169, fr e lw t da wt the with deal to laws new for d Likewise in Germany, there is no Germany,is there in Likewise utig a rsl i vr real very in result can quatting
- 175 (2001). 175
to deal with deal to
to be the be to -
CEU eTD Collection 13 12 Framework, UDRP Within from the Solutions 11 Them, 10 system address to domain name/cybersquatting issues. name. domain of to leads transfer or name offending domain of cancellation are: available remedies only The participants. which precedent), case of judgments. following in inconsistency (obligatory decisis stare of doctrine no nationalor inmultiple courts, depending onthenature ofthe disp court national a in litigating than inexpensive more typicallyis it and quicklyrelatively delivered international (UDRP) Process Resolution Dispute calledUniform disputes name domain of resolution the for forum arbitral private a promulgated (ICANN) Numbers and Names Assigned Due system 12BGB Code).(German conjunction in Civil with court the through resolved typically are disputes name domain and cybersquatting jurisdiction, statute specific Id. LisaSharrock, M. Lambert Pechan, Paragraph 4(i) of the UDRP Rules of4(i) the UDRP Paragraph
at 818. 818. at to
7
(3) However, the UDRP has its detractors. The issues cited by the detractors are that there is there that are detractors the by cited issues The detractors. its However,UDRP has the the J. of Intell. Prop. L.ofProp. J.Intell.&Prac.
overwhelming demand a demand overwhelming
arbitration forum that is generally preferred by disputants because the decisions are decisions the because disputants by preferred generally is that forum arbitration
Domain Grabbing in Germany: Limitations of Trade Mark Trade Limitations of in Germany: Grabbing Domain
drsig h cie f yesutig Atog Gray s cvl law civil a is Germany Although cybersquatting. of crime the addressing The Future of Domain Name Dispute Resolution: Crafting Practical International Legal Legal International Practical Crafting Resolution: Dispute Name Domain of Future The 13
osqety te ol ad cdma ae en erhn fr better a for searching been have academia and world the Consequently, 12
166 (2012). 166 utemr, h UR ofr lmtd reme limited offers UDRP the Furthermore, nd stress on national court systems, Internet Corporation for for Corporation Internet systems, court national on stress nd
51
Duke L.DukeJ.
4
817 (2001). 817
10
ute. Protection and How to Overcome Overcome to How and Protection
11
The UDRPThe anis is o dispute to dies CEU eTD Collection 16 (1988). 15 14 information controlling of means efficient an not was furthermore and much too became file reached. be could a network IP the and (hosts) computers of names between map a provide Institute Research Stanford t sent be file new the of copies and updated, be to needed file to ARPANET, was
o all connectedhosts. all o Domain NameDomain History
As previously stated in this paper, the early years of the Internet were filled with growing with filled Internetwere the of years paper,early this the in stated previously As the are they why and about came names domain how discussing be will Ichapter, this In supra
16 at
4 .
14
–
the infancy of the development of ARPANET, each host computer computer ARPANET,of host development each the of infancy the
Development of the Domain Name System, Name theDomain of Development The
defenses
ain names. . It is important to note that unlike trademarks, there trademarks, unlike that note to important is It . 5
- 18 NIC).
ACM Computer Comm. Rev. Comm. ACM Computer 15 52, 123 October( 123 52,
ddresses where they they where ddresses It was developed to developed was It cntttd the constituted, e 1985 ).
123 CEU eTD Collection 21 20 oftenchaotic of light use replication, t much to benefit did not provide IEN116 and host specific, 19 123 p. at 18 123) p. (at 17 ad IP4 through incepted two actually are there address, addresses toconsider. proper the to information receiving and sending networks the through with dealt are issues addressing Internet unique. be to order in address, physical a to must address each destination, a to source a from network a across information successfullysend letter physical a sending for mechanism the to Similar 1.1.1 related issues initial tothe ARPANET and name addressing system. hosts. between communications streamlining of purpose the to relation in shortcomings had also each 83). (Oppen systems Clearinghouse system, naming namingdistributed needed system tobedeveloped. host. a to going hen, and may still be, the most the may be, still hen,and See Lindsay,See Lindsay,See K. Harrentstein, M. Stahl and E. Feinler Id. at 123 123 at FeinlerId. E. Stahl M. and Harrentstein, K. and Stahl Harrenstein,M. K. 1985 October, 952, RFC specification” host table internet Feinler“Dod E. and Stahl Harrenstein,M. K.
19 Importance of DNS and Mapping Mapping Names and AddressesImportance ofDNS toDomain
One address is a computer a is address One form. binary in information of processing the for allows that machine a is computer A distributed suitable a for search the in about bandied systems naming several were There
hs te oan ae ytm wt is lxblt, was flexibility, its with System, Name Domain the Thus, style of the DARPA Internet.‟ DARPA ofthe style supra supra 17
at 4. at 4. at uh s AP Itre‟ IEN116 Internet‟s DARPA as such
caching, and fixed number of hierarchy levels wereappropri levels hierarchy of number fixed and caching,
n re fr h Itre to Internet the for order In
dress, which were structured under a rigid classes based on number of of number on based classes rigid a under structured were which dress,
E. Feinler “Dod internet host table specification” RFC 952, October, 1985 October, 952, RFC specification” host table internet Feinler“Dod E. sophisticated name service in existence, but it was not clear that its heavy u heavy that its notwas clear but it existence, in servicename sophisticated
- readable IP address. This form of the address was originally was address the of form This address. IP readable
18
Each of these systems had plausible benefits, however benefits, plausible had systems these of Each –
124. „The IEN116 services seemed excessively limited and and limited excessively services seemed „The 124. IEN116 6 justify the costs of renovation. The XEROX system was system TheXEROX renovation. of costs justifythe
continue its expansion, a more streamlined streamlined more a expansion, its continue XRX rpvn (Birrell Grapevine XEROX , IP protocol. IP
eeoe t da wt the with deal to developed ate for ate the
heterogeneous and and heterogeneous 21
In the case of case the In
se ofse 8) and and 8) 20
CEU eTD Collection &Tutorials Surveys Comm. 26 25 Sci. ofComputer 24 23 22 in day fateful the Thus, trademark. the of proprietor the is holder name domain the whether to tra a holding for entity an of goodwill potential or mark a of no degradation be would there because address the concerning issues property intellectual no be generally would there name, domain the Without rights. trademark of holders of context its for policies designs and DNS manages operations.(change sentenceand this around.. pasted) copy its 'ICANN' Numbers and Names Assigned intern the of commercialization widespread hyperlinking the thus of development the support World to WideWeb,the and created that Locators) Resource Uniform of systemform the (in mechanisms right the was addresses IP unique IPdomainnamesmap to to is of m DNS method addresses.„ This human a is address 2001:500:88 192.0.43.10 (IPv or 4); this: would looklike string typical A surfer. web average the to incomprehensible mostly be would that numbers of 16 of consist addresses IP6 IP6. space, address new a of development 1990‟s the necessitated prefix. network the to allocated bits Steven Wright, Steven Lindsay,See Banday, Tariq M. Lindsay,See Lindsay,See - bit integers separated bycolons. integersbit separated hs eeomn i sgiiat o h aeae sr f h Itre tdy a today Internet the of user average the to significant is development This A
eod drs i asge t ec hs cmue cnetd o h Itre. This Internet. the to connected computer host each to assigned is address second supra supra supra :200:0:0:0:10 (IPv6)
Cybersquatting at the Intersection of Internet Domain Names and Trademark Law, Trademark and Names Domain Internet of Intersection the at Cybersquatting 18 (2011). 18
Recent Developments in the Domain Name System, Name Domain the in Developments Recent
at 6. at at at
- 6 5 readable name, known now as a domain name. domain a as now known name, readable . .
194 (2012). 194
24
23
22 The IP4 and now IP6 address are a very complicated stringIP6IP4are anow very address andThe
oee, h rpd f xaso o te nent n the in Internet the of expansion of rapid the However, 7
et. 26
31 demark resulting from confusion as confusion from resulting demark Currently, Internet Corporation for for Corporation Internet Currently,
Int'lo J. apping unique domain names tonames domain appingunique 25 f Computer Applications, Found. Applications,Found. fComputer
„The main purpose of the of purpose main „The 14
(1) nd in the the in nd
IEEE eight CEU eTD Collection 33 32 31 30 29 28 27 Intern DNS. by recognized are TLDs what control to domain‟ „root or zone‟ „root the of administrators the last the following letters " in "info" as such ".", (rightmost) of string the as names domain in appear They hierarchy. naming top the called is (“.”).hierarchy dot a as represented is which domain, root the is hierarchy computer name). Third (2LDs), Top from levels hierarchical the into divided treehierarchyDNS the for basis structure‟. tree and root a around hierarchically Name1.2.1 Domain Space 1.2 to names readable addresses human assigning of concept the suggested first Karp Peggy when 1971 Id. Id. See Lindsay,See Lindsay,See Lindsay,See See Lindsay,See
at 18. (Banday) 18. at (Banday) 18. at – Banday
33 et naming and address functions. Due to the hierarchical nature of DNS, the responsibility responsibility the DNS, of nature hierarchical the to Due functions. address and naming et Domain Name Space NameDomain Space TopLeveland Domains
h ipts eid mlmnig h DS a t dcnrlz te diitain of administration the decentralize to was DNS the implementing behind impetus The the describes further Banday Tariq organised is (DNS) Space Name Domain „The book his in notes Lindsay David 27 ,
continues toreverberate th supra supra supra supra supra - Level 30
at
at at at at
18
8 8 4 8 . . .
.
Domains (3LDs) all the way to Nth to way the all (3LDs) Domains .
-
ee dmi (L) TD ae h nms t h tp f h DNS the of top the at names the are TLDs (TLD). domain level
. 29 www.banday.info
The DNS tree has a maximum limit of 127 levels, customarily127levels,of limit maximum a treehas DNS The rough the IPrough the Law totoday. courts and up world structure - ee Dmis TD) Second (TLDs), Domains Level 8 28
". This structure provides the establishing the establishing the provides structure This 32
in his article: „The topmost level in the the in level topmost „The article: his in
By implementing this structure, it allows it structure, this By implementing - Level Domain (which means the host host the means (which Domain Level
31
h nx leve next The - ee Domains Level
i the in l CEU eTD Collection 37 ofL.Tech. & Int'lInfo. J. 36 35 34 was alsoremovedin1996 .org was removed in1996. .net .mil .in .gov .edu .com initial TLDs envisaged them. andfor theuses seven only listed 1994 March in released 1591 RFC TLDs, generic Regarding TLDs: Generic ii. generally of twokinds genericTLDs: TLDs (gTLDs) andcode country (ccTLDTLDs Top i. 1.2.2 Top entities assigningMultiple and entities.somuch information. to multiple This monitor entityonly can one issignificant because out it spread entityandone from namesmanaging assigningand overwhelmingresponsibilityfor of entities. selection larger a to given be could levels different at names assigning and managing for See Lindsay,See R.Easton, Catherine Lindsay,See Id. –
at 18. (Banday) 18. at –
– – – – limited to limited –
- intended only for for only intended limited toUSmilitary intended as miscellaneous TLD for TLD miscellaneous as intended intendedUS educational for
limited currently USfederallimited agencies government to ee Dmis Top Domains: Level intendedcommercial for entities This decentralization was a key development in the growth of growth the in development key a was decentralization This 34
- Level Domains (TLDs)LevelDomains supra supra organizations
at 9. at at
ICANN’s Core Principles and the the and Principles Core ICANN’s 9 .
275 (2012). 275 organizations 38 .
established by treaties international -
ee Dmis r icue i al oan names. domain all in included are Domains level
managing names allowedInternet namesgrow.managing the the space to
institutions thatyearinstitutions arecollegesuniversities 4 or
providing network infrastructure. However, the restriction restriction the However, infrastructure. network providing
organization 37
Expansion of Generic Top Generic of Expansion 9 The sevenThe are as follows:
that didn‟t fit elsewhere. The restriction restriction The elsewhere. fit didn‟t that
- level Domain Names, Domain level
the Internet as it took the the took it as Internet the
35
s). hr are There
36 20
(4) CEU eTD Collection 43 (1998). 42 41 40 39 38 newInternetgovernance‟. system of a of catalyst the be will naming domain so 1920s, the in crystallized regulation media mass of systems which around problem the provided frequencies radio of scarcity the as Internet.Just the t fundamental is TLD a manage and create to right the distributing for system controversy.global a for Yet basis unlikely the an and topic, obscure an be to appear may „TLDs engenderso would domain a classifying of area mundane seemingly this why wonder might One Domains. national or geographical on based boundaries TLDs are ccTLDs (ccTLDs): TLDs Code Country v. linguistic and cultural community. Catalan the for is which string, .cat the as such restrictions, have some however registration, eligi differing have can strings sponsored These .travel. and .jobs, iv. .cat, .asia, following: Sponsoredthe be TLDwould (sTLD): string sponsored a of example An categories: and (sTLDs) sponsored non furt can one genericTLDs, examining In TLDs:Generic New iii. .net. and.org registration for were restrictions. open without .com, example, For restrictions. have some and open are gTLDs of registrations Some thirty. See Mueller, Milton Lindsay,See See See Lindsay,See Mueller Easton Easton
hr hs en cnieal aon o cnrvry olwd rltd o Top to related worldwide controversy of amount considerable a been has There nu the Internet, the of expansion rapid the to Due , , , supra supra standing oftwoconsists letterand countries. abbreviations for the supra supra supra much controversy.much byDr.up ofanalogy bestsummed is reason The Mueller: Milton
The Battle Ove Battle The
at at
at at 9. at 9. at 275 275 8 9.
. .
r Internet Domain Names: Global or National TLDs?, National or Global Names: Domain rInternet 41
43
- sponsored (uTLDs). sponsored
10
mber of gTLDs now numbers at least least at numbers now gTLDs of mber 39 40
her split them into two separate two into them split her bility criteria. Some are open open are Some criteria. bility
22
(2) 42
Telecomm. Pol'y Telecomm.
o the operation of operation the o
- Level
90
CEU eTD Collection treaty‟.) international such authority, oflegal source external independent, any to by reference than rather the parties between 47 46 45 InternetSociety the and providers, service and usersmany Internet Union, the European Union, Telecommunication International the committee, aninteragency 44 increasing amountproperty ofintellectual infringement. the to solution a design to pressure heavy under registering was it names, began domain as trademarks registrantsregistered name domain when that meant names domain of allocator the uncertain. is legal governance regarding agreements the these enter to although authority Inc., Solutions Network and ICANN Commerce, of Department US the governance;state; corporate publicmanagement. andnew minimal the to refers it example, for governance: of uses many are „there adding: continues, Lindsay definition‟. accepted single no with imprecise, be to acknowledged widely is internet Internet the to relation in power great governance. of position a occupies thus and names domain of 1.3.1 ICANN 1.3 control and access to likely will most TLDs tothe foreseeable continue future. providers. service many and (“EU”) Union European the agencies, federal note huge are implications the See Lindsay,See Lindsay,See Easto See Mueller, See – s
in his article, this seemingly trivial matter has already taken up the up taken already has matter trivial seemingly this article, his in ICANN Name Domain Infringement and Claims ICANN obtained this ability to allocate domain names through a contract in 1999 with 1999 in contract a through names domain allocate to ability this obtained ICANN a is ICANN T hough n, supra 45 supra supra supra
oee,a ntdb ai Lnsy tetr „oenne n rel in „governance‟ term „the Lindsay, David by noted as However, Dr. Mueller wrote his article in 1998, Dr. Mueller‟s point is still valid today and and today valid still is point Dr.Mueller‟s 1998, in article his wrote Dr. Mueller
at 27 at
at 89. at at at 48 27 nonprofit 6
. . .
„The problem has already engaged more than a dozen US federal agencies acting through through acting agencies US federal dozen a morethan engaged has problem already „The (“ Authority over the DNS is therefore defined mainly y means of the agreements meansthe agreements yof mainly defined istherefore the DNS over Authority ,
as those who control the TLDs will control the intern the control will TLDs the control who those as
organization based out of California which regulates the allocation the regulates which California of out based organization ” .
11
..‟. 46
47
attention of many US many of attention ICANN‟s
44
h fgt over fight The et. As he also he As et. to o the to ation
position as position as an
CEU eTD Collection 48 of WIPO. rec the on part in Policybased Resolution Dispute Uniform the established ICANN issue. the address to action of plan a regarding (“WIPO”) Organization Property See Lindsay,See the Worldfrom recommendation a requestIntellectual to ICANN prompted pressure This
The UDRPThe supra
at 103
and its elements its andand defenses .
12
will bewill fully discussed more inchapter ommendation 48
n 1999, In four.
CEU eTD Collection 53 52 51 at: 50 at: Available [online] 49 1) Thus, theregeneral arepurposes two trademark for in place: protection having that trademarksare n good the of source your business‟. success of val most your be may trademark „your that site official its so fiercely protectedtoday. produ their make ultra modern the In product. product”. or company a representing symbol, “a be to understood generally 2.1.1 aTrademark? is What 2.1 through development and history the is, trademark a what describe will I section, this In Introduction: ChapterTwo: Trademarks See Law Property Intellectual Global Suthersanen, Uma GrahamDutfield& Law Trademark ofJapanese Overview ShoenOno, Oami.europa.eu. 2014. Trade basics marks Trade 2014. Oami.europa.eu. English). &World (British dictionary Oxford in trademark of definition trademark: 2014. Oxforddictionaries.com.
https://o to protect ofmark‟s the owner a and investment; – Wright
Trademark and History Trademark of The Office for Harmonization in the Internal Market (“OHIM”) goes so far as to state on state to as far so goes (“OHIM”) Market Internal the in Harmonization for Office The is trademark a trademark, of definitions various utilize jurisdictions different Although, time, and a comparison of US Law,a of and comparison US time, Law, UK Law.and German ami.europa.eu/ohimportal/en/trade , supra
at ct stand out from the pack, and thus we begin to ascertain why trademarks are trademarks why ascertain to begin we thus and pack, the from out stand ct http://www.oxforddictionaries.com/definition/english/trademark 51 19
ot limited toprintable characters, canorscents. but colors ot limited also be
as well as sometimes implying quality or lifestyle. or quality implying sometimes as well as 5.
50
The trademark doesn‟t simply identify a good, but alsoidentifies the Thegood, doesn‟tbut trademark asimply identify -
opttv wrd cmais n bsnse sed ilos to millions spend businesses and companies world, competitive
- - marks
49 CTM. [online] Available Available [online] CTM. word, or words legally registered or established by use as as use by established or registered legally words or word,
t s ht itnuse yu pout rm h next the from product your distinguishes what is It -
basics 1 ch.2 (2nd ed. Yuhikaku 1999). ed. (2nd ch.2 1 13
[Accessed: 25 Feb 2014]. Feb 25 [Accessed:
139 (Edward Elgar Publ'g 2008). (EdwardElgar 139 uable asset... and is crucial to the the to crucial is and asset... uable
52 [Accessed: 25 Feb 2014]. Feb 25 [Accessed:
It is also useful to note to useful also is It
53
CEU eTD Collection at: Available [online] 57 56 55 Law, 54 However,discussed previously world.as entire the not it, grants which jurisdiction the to extend commerce. in use in is it and distinct is it that show to need would one protection, trademark a for qualify to example, For law.trademark words been has asa established trademark those for meaning secondary that shown be can „it if protection trademark for qualify to able be as recognized commerce”. and distinctive “inherently deemed are words • • • • • scale of distinctiveness: 2)
Wright, See Wright, See Park, Suzanne Leslie Generic to Descriptive are attached to Suggestive Arbitrary Fanciful Law.cornell.edu. 2014. Trademark | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute. Institute. |Information LII / Legal Encyclopedia / LegalDictionary | Wex Trademark 2014. Law.cornell.edu.
for thebenefit ofthe (so consumer that they may
2013 It will be important to keep these items in mind when contrasting the differences between differencesthe between contrasting when mind in items these keep to important be will It Suggestive or Arbitrary Fanciful, mean. distinctions these what note to important is It following the on based evaluated generally are “Trademarks that notes Wright Steven 2.1.2 Evaluating Trademarks 2.1.2 Evaluating
Seton Hall L. ERepository1 (2013). L.SetonHall ERepository1 - -
- words in common usagewords asof common in thename item. supra supra coined terms withnocommonplacecoined dictionary terms or meaning. 55
dictionary words in common usage that do not describe incommon usagedonot theyare words attached that dictionary theitem to - -
Words that are generic can never be trademarks. However, descriptive words may words However, descriptive trademarks. be never Words can generic are that connection tothe item they establish a leap imaginative to require some that words words that specifically describe some some describe specifically that words
at 195. at 195. at http://www.law.cornell.edu/wex/trademark The
Primary Trademark Identifier Requirement: A Change to Current Trademark to Trademark Current Change A Requirement: Identifier Trademark Primary
in the market”.in the 57
Fu 14 rthermore, this protection would generally only generally would protection this rthermore,
identify proper good maker)identify proper of characteristics of the item they are attached attached are they item the of characteristics
[Accessed: 26 Feb 2014]. Feb 26 [Accessed:
56
trademarks upon usage in in usage upon trademarks
54
CEU eTD Collection Law 60 59 explicitly was This 58 goods. about deceit consumer protecting and business the identifying of va and goodwill in trademark‟simportance a to due protection trademark of, need trademark. with specifically century nineteenth in 1584. Case Sandforth‟s until trademarks of recognition judicial tacit no general in no was there human civilization. commercial our of fabric the into interwoven are trademarks concept the that illustrates this of products. their identify to marks using Ages Middle the in guilds to marks, with products their imbuing societies Roman and Greek ancient the from ranging evidence is there Likewise, potter. proud the of mark the with imprinted pottery yearold 3,000 of evidence is There years. not if even trademarks, 2.1. first a bebeneficial brief toprovide trademark background on history. between and it domain names. distinctions the mind in keep to important is it is, trademark a what examining in Thus, over. ju need One particularly.name domain a registering for requirements no is there section, name domain the in Sheldon W. Halpern, Craig Allen Nard & Kenneth L. Port, Fundamentals of United States Intellectual Property Property Intellectual States Fundamentals ofUnited L.Port, & Kenneth AllenNard Craig Halpern, SheldonW. Se See Ono, Ono, See e Ono, Ono, e
3 290 (Kluwer Law Int'l 2011). Law (Kluwer Int'l 290
60 History oftheHistory Trademark
Unfortunately for the potter and all ot all and potter the for Unfortunately of concept the fact, In years. many of course the over developed has law Trademark UK US, of examination an to proceeding Before From this first case, there has been a gradual evolvement of trademark law, from the from law, trademark of evolvement gradual a been has there case, first this From supra supra st register with a registered provider and the domain name is valid the whole world whole the valid is name domain the and provider registered a with register st ch 2 at 1. at ch2 ch 2 at 2. at ch2 omn a tr o „asn of, o full to off‟, „passing of tort law common
trademarks in the modern sense, have been around for thousands of of thousands for around been have sense, modern the in trademarks
It is clear that there has been an increase in, and recognition for the the for recognition and in, increase an been has there that clear is It
hers imprinting their business mark on products, on mark business their imprinting hers 15
and German trademark law, it would it law, trademark German and - fledged modern statutes dealing dealing statutes modern fledged
lue as a means means a as lue 59
All 58
CEU eTD Collection the Principle to Exception 63 2014] http://www.ip.mpg.de/en/pub/research_teaching/ip/main_areas/concept_of_territoriality.cfm at: Available [online] Property. Intellectual on Impact 62 61 registered countries ofthe origin”. thecountry Union,including inthe other of marks of independent as regarded be shall Union the of country a in registered duly mark “A 6(3), which states: i that enough important is principle The Institute PlanckTheIntellectual for Max describes Property thusly: theprinciple trademark international of protection,of theprinciple ter principles fundamental the of one with consistent be to order in this intentionally Convention did the draftersof interestingthe because is definetrademark. This Paris the that note to interesting is It effect. in still is Convention the 2014, of As trademarks. particular, in property,and intellectual of protection the concerning 2.1. the to modern Convention TRIPs Agreement. Paris the from protection, increasing ever of series a through recognized James E. Darnton, E. James Lindsay,See Ip.mpg.de. 2014. Max Planck Institute for Innovation and Competition and Innovation for InstituteMaxPlanck 2014. Ip.mpg.de. 4
The ParisConvention the protectionIP of rights”. can and protectionstructuring principle recognised internationally an considered property be therefore intellectual on conventions multilateral as nationa both for basis the forms territoriality of principle The good. immaterial same the on other each alongside exist may is regimes legaldifferent to subject are right which rights protection regional the where State the of territory Th the granted. to limited is right IP an of treaties first the of one was and 1884 in effect into came was Convention Paris The supra “According to the principle of territoriality, the scope of protection protection of territoriality,scope of the principle the to “According
Coming of Age of the Global Trademark: The Effect of Trips on the Well the Tripson of Effect The Trademark: Global the of Age of Coming
at
s ifrn, n fo ec ohr needn, ainl and national independent, other each from and different, us
172
of of Territoriality, .
ritoriality.
62
20
(1) (1) 61 t was included in the Paris Convention Paris the in included was t
The Mich. St. C. of L. Int'l L.L.Rev. Mich. Int'l C.ofSt. The
16
l and regional IP laws as well well as IPlaws regional and l -
The Concept of Territoriality and its and Territoriality of Concept The
Convention did not attempt to attempt not did Convention
16 (2011). 16
[Accessed: 25 Feb Feb 25 [Accessed: - Known Marks Known 64
63
under Article under CEU eTD Collection 67 66 65 6(3) at: Available 64 international tradem from ranging law of survey a conduct now will I law. trademark modern for framework the provided particular in Convention Paris The guidelines. necessary law trademark of era modern Paris Convention. 1 Articles with compliance requires it because important is TRIPs Moreover, countries. member amongst Convention Paris the for mechanism enforcement an establishing conventions. the to regard in obligations their on diddled frequently signatories many and mechanisms enforcement strong particularly provided them of none because conventions other subsequent and Convention Paris the after needed were 2.1.5 Furthermor foundationfor andtreaties moresuch structure as modern TRIPs. today. law trademark international in utilized still is territoriality,of principle which the being important most the perhaps principles, important many See Lindsa See Lindsay,See Rights Property Intellectual Globalising DuncanMatthews, Wipo.int. 2014. WIPO 2014. Wipo.int.
Agreement on Trade on Agreement h Prs ovnin n TRIPs and Convention Paris The negotiations Further agreement. TRIPs the birthed negotiations of Round Uruguay The Thus, theParis wasgroundbreaking inwriting Convention atreaty memorialized inthat it y, http://www.wipo.int/treaties/en/text.jsp?file_id=288514#P174_27991 supra supra
at 172. at 172. at 67
ark law tonationallaw law inthe trademarkUS,UKand ark Germany. -
Administered Treaties: Paris Convention for the Protection of Industrial Property. [online] [online] Property. ofIndustrial thefor Protection Convention Paris AdministeredTreaties:
- Related PropertyRights (TRIPs) Aspects ofIntellectual
gemn ae oh motn i ta te gv the give they that in important both are agreement 17 65
8 Thus, the TRIPs Ag the Thus, (Routledge 2003). (Routledge
[Accessed: 26 Feb 2014]. Article 2014]. Feb [Accessed: 26 e, it provided the basic basic the provided it e, reement was a means of means a was reement - 12 and 19 of the of 19 and 12
66
CEU eTD Collection 71 2014]. Feb 70 2014]. Feb 69 68 domain of resolution dispute for model a on recommendation a provide to WIPO solicited then abou brought eventually which Internet, the on governance determining of law. • a world social andcultural development; • • • global • a influential organization this Below is. of a serv is sample how at look a get to countries), (186 have they members many how and lot), (a provides WIPO all”. of benefit t the for creativity and innovation enables system (IP) property intellectual international effective and balanced a of development states. national Conve Paris the of 2.2.1 World (WIPO) Intellectual Property Organization International Trademark2.2 Law See Lindsay,See See technical infrastructure Wipo.int. 2014. Inside WIPO. [online] Available at: Available [online] WIPO. Inside 2014. Wipo.int. at: Available [online] WIPO. Inside 2014. Wipo.int. cooperation
policy
Matthews, Matthews, WIPO was involved in the initial International Ad Hoc Committee formed for the purpose purpose the for formed Committee Hoc International Ad initial the in involved was WIPO A further look illustrates the extent of their influence over modern intellectual property property intellectual modern over influence their of extent the illustrates look further A measure the enforce to effort an in 1967 in WIPO established (UN) Nations United The
services
reference forum balanced shape IP to international rules forchanging a world; supra
supra and and 68
to protect IP to protect acrossand toresolve borders disputes;
at codn t te IO iso saeet ter iso i t “ed the “lead to is mission their statement, mission WIPO the to According
varying of laws property intellectual the harmonize to furthermore, and ntion capacity 8. at source for IPsource for information 38
.
to connect IPto connect share systemsand knowledge; - building
rgas o nbe l cutis o s I fr economic, for IP use to countries all enable to programs
70 http://www.wipo.int/about http://www.wipo.int/about
18
69
ices they provide:ices they
One need only look at all the services the all at look only need One - -
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t ICANN. t
[Accessed: 26 26 [Accessed: 26 [Accessed: 71
ICANN hat CEU eTD Collection http://www.wto.org/english/thewto_e/thewto_e.htm 76 2014]. Feb 26 [Accessed: 75 2014]. Feb 26 [Accessed: 74 73 72 • • • • • • negotiations 159currentgives with membersfollowingas functions: its thatthe 2.2.3 World Trade (WTO) Organization internationalgreaterto foster for community European trademarksUnion. across the protection protection and registration of purpose via Union 2.2.2 European Office the Market in forInternal Harmonization (OHIM) trademark law. resolution. UDRP. the in resulting names,
Lindsay,See Lindsay,See Administering WTO agreements trade Technical and assistance Cooperationinternational withother organizations Monitoring national policies trade Handling tradedisputes Forum for tradenegotiations Wto.org. 2014. WTO | About the organization. [online] Available at: Available [online] |the organization. About WTO 2014. Wto.org. Availabl [online]Who weare. 2014. Oami.europa.eu. at: Available [online]Who weare. 2014. Oami.europa.eu. WTO is a global international organization created in 1994 out of the U the of out 1994 in created organization international global a is WTO the for specifically 1994 in formed was and Union European the of agency an is OHIM 73
supra supra h aoe lutae te ue mat WIP impact huge the illustrates above The
at at
116 106
. .
training developingcountries for
72
Furthermore, ICANN has designated them a forum for dispute for forum a them designated has ICANN Furthermore,
f rdmrs n designs. and trademarks of
[Accessed: 26 Feb Feb 2014]. 26 [Accessed: e at: e 19
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hs n nelcul rpry and property intellectual on has O
74
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75
CEU eTD Collection 83 82 81 80 at: Available [online] 79 78 77 1) ToLanham prove trademarkfederal infringementunder the youprove: Act, must a) of another andthe toindicate those from seller or manufacturer one in of goods used the thereof, distinguish and combination identify any to commerce or design, or symbol, name, word, any is trademark “A law. years constitutional afederal until comprehensive, trademarkenacted. could be law federal first tra the of 1870 in enactment the by evidenced as U.S., for the need in a protection recognized trademark long was There law. state to opposed as law trademark U.S. federal offershol its for protection greater trademark registered a but unregistered, or registered be can trademark A protection. UnitedTrademarkStates 2.3 Law law. intellectual for framework the provides which treaty modern the is which Agreement, Law Trademark Understanding LaFrance, Mary Lindsay,See Se See Law Trademark C. Lind, Robert Lanham Act, § 45, 15 USC § 1127. USC15 § 45, Act, § Lanham Institute. |Information LII / Legal Encyclopedia / LegalDictionary | Wex Trademark 2014. Law.cornell.edu.
Elements for a TrademarkInfringement DirectActionInfringement for eak law. demark
aa protectable valid interesttrademark in e Lindsay,e 82 Lind, Lind,
The LanhamThe atrademark defines Act thusly: The United States enacted the Lanham Act in 1946 to specifically deal with trademark with deal specifically to 1946 in Act Lanham the enacted States United The state of system dual a under divided is law Trademark States United The TRIPS the about bringing in instrumental was it because important is WTO The supra supra supra
at 80
68. 68.
at at http://www.law.cornell.edu/wex/trademark oee, ht a ws ed nosiuinl n tu wud e nte 76 another be would thus and unconstitutional held was law that However,
173 173
. .
source of the goods”.source the of
5 (N. Carolina Academic Pr 2006). Pr Academic Carolina 5 (N. der.
79
For the purposes of this paper, I will deal predominately with predominately deal will Ipaper, this of purposes the For
6 (LexisNexis 2009). (LexisNexis 6
20 83
[Accessed: 27 Feb 2014]. Feb 27 [Accessed:
77 81
and federal and
property property 78
CEU eTD Collection 87 86 85 84 on three chapter in law trademark and cases name domain on effects ACPAdiscuss its and will name domain fit to struggling courts to registered is goldenarch.com that The assume McDonalds. generally would consumer a instance, For address name domain the equate consumers modern paper, this in previously referenced as However, addresses. to remedies and protection give to developed not was law trademark and address, an really is name domain a because is this for issue infringement trademarka was them of use whether and names domain • • • • • • factors non is it although test, occurred. has infringement 3) 2)
See Lafrance, See Lafrance, See Lafrance, See Lind, See defendant‟s lackgood (or thereof) faith actual confusion; and consumer sophistication strength plaintiff‟s of mark competitive proximity similarity marks of
the likelihoodofconsumer confusion. the defendant‟s mark in that useof For the purposes of this paper, it is important to note that courts initially had trouble with trouble had initially courts that note to important is paper, it this of purposes the For H ere, we can see that there is a three step analysis in ascertaining whether a trademark a whether ascertaining in analysis step three a is there that see can we ere, supra supra supra supra - exhaustive.
at 68. at s motn t nt ta n single no that note to important is
at 183 at 140 at 140. at Anti
- . C
-
157 ybersquatting 85
Some ofSome thefactors are:considered by courts .
Furthermore, federal courts have adopted a multi a adopted have courts federal Furthermore,
infringement cases into traditional trademark law cases. I cases. law trademark traditional into cases infringement commerce; and
Protection Act (ACPA) largely alleviated this tension of tension this alleviated largely(ACPA) Act Protection 86 84
21
atr s eemntv and determinative is factor
ih h bsns onr ak generally. mark owner business the with
. 87
Part of the reason the of Part - factor balancing factor
that the list of of list the that CEU eTD Collection 89 88 the introduced Kingdom United the 1875, in Thus, marks. registering of system a for pushed goodwill. mark most as initially sought injunction, an wanted were plaintiffs equity of courts The (“UK”). Kingdom United the in marks UnitedKingdomTrademark2.4 Law Law”. “TrademarkLind‟s Robert see please defenses, of reading complete a For above. the list only • • • • • • • elements ofainfringement trademark claim. following are adefensesThe of few available: the there infringement, name domain to Similar b) cybersquatting
W. William Rodolph Cornish & David Llewelyn, Intellectual Property Intellectual Llewelyn, &David Cornish WilliamRodolph W. Lind, See first sale doctrine First Amendment fair use unclean hands laches statute oflimitation valid license
Defenses to a TrademarkInfringement Action
Similar to the United States, for many years there were demands for legal protection of protection legal for demands were there years many for States, United the to Similar I relevance, and paper this of interest the for but available, defenses other few a There
supra
. at
89
149 However, a more streamlined approach was needed and commercial interests commercial and needed was approach streamlined more a However, 88
.
i.e. ; they wanted the infringer to stop passing stop to infringer the wanted they ;
are also defenses that one can assert to negate these these negate to assert can one that defenses also are 22
607 (Sweet &(SweetMaxwell2007). 607
off or diluting the diluting or off
CEU eTD Collection TMA”) to necessary iswhich of has Neither damage. suffered theproprietor 94 93 92 91 90 name atthe later commencement the date of of of mark; theuse was mark trade unregistered the of owner the extent, what to and “Whether, • circumstances suchas: the on contingent is protected be will mark unregistered an whether that further notes (“IPO”) trade a than tougher is action this that succeeding be should in though noted it off‟, law of „passing action claim thecommon under unregistered, is but business of course Act. Mark Trade the under trademarks unregistered numeralsgoods packaging”. ortheshapeof ortheir (in words of consist particular, in may, mark trade A services undertaking thoseof ofone other from undertakings. or good distinguishing of capable is which graphically represented being of capable sign “Any EC an with line in fall to Directive. law mark trade its of scope the expanded Act 1994 the that and EU the of part is UK the that note of is It 1994. Tradeand Markof 1934 Trade Act Markof Act Act. Registration Marks Trade See LornaBrazell, Ono, See See Trade Marks Act 1994 (UK) (UK) s 1(1) MarksAct 1994 Trade Brazell Llewelyn, Cornishand
It should be noted that unlike in the US, the UK does not explicitly provide protection for protection provide explicitly not does UK the US, the in unlike that noted be It should The 1994 Trade supra 91 ,
supra Intellectual Property LawHandbook Property Intellectual ch 2 at 3 at ch2
at 55
. .
(“in passing off it is necessary to prove that the trade mark has acquired goodwill and that goodwill and markhas acquired trade that the prove to necessary it is (“inpassingoff
supra Mark Mark (“TMA”)Act „trade mark‟ defines tomean:
at
90
608. 608.
This act became the p the became act This ak nrneet action. infringement mark
it's
possible to prevent use by a third party by bringing an bringing by party third a by use prevent to possible
55 (1st ed. The Law ed. 2008). Soc'y (1st The 55 23
92 93
cluding personal names), designs, letters, letters, designs, names), personal cluding However, if a mar a if However,
recursor to the modern acts such as the as such acts modern the to recursor establish a trade mark infringement under under markinfringement trade a establish
94
h Itleta Poet Office Property Intellectual The
k has been used in the in used been has k trading under the the under trading CEU eTD Collection 97 96 at: Available 95 of association withthe trademark. c) b) a) • with those for which isregistered. it identical are which services or goods to relation in mark trade the with identical is which sign a • A The Trade Mark providesAct the following of1994 ofinfringement: instances a) examine theelementsfor necessaryinfringement a trademark action. business”. user‟ssenior the in goodwill the to cause would confusion such that damage the of extent “The • thinkinginto thatthejunioruser‟sgoodsand services are thoseofuser”; thesenior substanti a intentionally) not or (whether deceive and confuse to likely be to as so trade, of fields their to regard having similar, sufficiently are marks two the “Whether •
because: mar trade registered a infringes Aperson Trade Marks Act of 1994, s. 10(2) s. MarksAct of1994, Trade 10(1)s. MarksAct 1994, Trade PropertyOffice Intellectual 2014. Ipo.gov.uk.
or tothosefor the similar trade isregistered, which mark is and mark trade the to similar is sign the those formark which isregistered; thetrade or to similar services or goods to relation in used is and mark trade the with identical is sign the Elements for a TradeInfringement Mark Action there exists a likelihood of confusion on the part of the public, which includes the likelihood likelihood the includes which public, the of part the on confusion of likelihood a exists there person infringes a infringes registeredperson trade if inthecourse trade: he mark uses of Now that it is established what established is it that Now
95 http://www.ipo.go
v.uk/types/tm/t
97 96
- other/t qualifies for protection under the Trade Mark Act, let us us let Act, Mark Trade the under protection for qualifies -
Infringement, What is trade mark infringement?. [online] mark infringement?. istrade What Infringement, k if he or she uses in the course of trade a sign where where sign a trade of course the in uses she or he if k
- used in relation to goods and services identical with identical services and goods to relation in used infringe.htm 24
[Accessed: 27 Feb 2014]. Feb 27 [Accessed:
al number of persons persons of number al
CEU eTD Collection http://www.legislation.gov.uk/ukpga/1994/26/section/11 100 99 98 iv. iii. ii. i. mark trade of allegations to defenses some infringement: provides also 1994 of Act Mark Trade The b) Defenses to TradeInfringement Mark of trade‟? another of mark trade registered a is that name domain a registering simply does example, For concepts. law mark trade traditional into infringement name domain • • • • tradeas: such trade‟. of course The
See Brazell, Brazell, See Brazell, See using the sign on business paperusing or thesignonbusiness inadver importinggoods under orexporting the sign; purposesor underoffering the sign, orsupplying the services sign; under those for them stocking or market, the on them putting sale, for goods exposing or offering affixing oritspackaging thesigntogoods
Legislation.gov.uk. 2014. Trade Marks Act 1994, s. 11(1). [online] Available at: Available [online] 11(1). s. 1994, MarksAct Trade 2014. Legislation.gov.uk.
crucial part of the wording above in both instances of infringement is that it is „use in the in „use is it that is infringement of instances both in above wording the of part crucial characteristics goodsmark inrelation latter orservices to isregistered)for which the trade registered UK another of use the by infringed (not mark trade registered a of use of concept the fit to struggled initially Courts English the Courts, US the to Similar niain cnenn te id qaiy qatt, nedd ups o othe or use necessary theintended toindicate purposea productof orservice purpose intended quantity, quality, kind, the concerning indications use of a person‟s or name address (inaccordance own withhonest practices)
Ito answer chapter inthe next attemptthisquestion will oncybersquatting. supra supra
98
at 55. 55. at at
68 The TMA provides a non a provides TMAThe
.
citing: TMA 1994, s. 10(4) s. citing:1994, TMA
tising -
exhaustive list of instances of use in the course of course the in use of instances of list exhaustive
25 [Accessed: 28 Feb 2014]. Feb [Accessed: 28
99
constitute „use in the course the in „use constitute
100
r r CEU eTD Collection 103 Law Comparative Arena: International the in Trademarks 102 http://www.legislation.gov.uk/ukpga/1994/26/section/11 101 The German Trademark Act as: defines trademark with Community Trademark Directive. complying its to due Trademarks Community the as same the much is protection trademark to Paris the of 6 article of meaning the within known Convention..”. well are or use, their by circles trade in prominence acquired “has mark the that show must holder unregistered The holders. trademark unregistered and registered both protects MarkenG the UK, the unlike but US, the to Similar mark. the abusing others against marks of owners and confusion from consumers protect to comply withthe EU Trademarks Directive. GermanTrademark the instituted 1994, in and EU, (“markengesetz”) Act the of member a also is Germany UK, the law.Like trademark governs that statute a has Germany UK, and US the both bec issuebig however,alaw trademark ofnot difference systemis context this in In the casecommonlaw, law andprecedent through building civil law systemsgovern solely by statute. Trademark German 2.5 Law v.
See Stegmaier, at 434. at Stegmaier, See B. Stegmaier, Legislation.gov.uk. 201 Legislation.gov.uk.
numerals, sound marks, three marks, sound numerals, " when to regard in law German the that here noting worth is It the to Similar US the Unlike use of anaright locality earlier in All signs, particularly words including personal names, designs, letters, letters, designs, names, personal including words particularly signs, All German and European Trademark Law Trademark Trademark Law Trademark European and German 103
4. Trade Marks Act 1994. [online] at: Available 1994. MarksAct 4. Trade ntd tts n U, h proe f rdmr lw n emn i to is Germany in law trademark of purpose the UK, and States United and UK, Germany is a civil law system. Rather than a system based on on based system a than Rather system. law civil a is Germany UK, and
- dimensional designs, the shape of goods or of their their of or goods of shape the designs, dimensional
101
102
26 [Accessed: 28 Feb 2014]. Feb [Accessed: 28
433 (1998) 433
Law at Millennium's Turn: Part Six: Six: Part Turn: Millennium's at Law
a holder would be entitled be would holder a ause, like ause,
CEU eTD Collection 105 104 • above the for them stock to or purposes, market, the on them put to sign, the under goods offer to • • toaffix thesign ort togoods instances wouldbeconsidered ofwhat “in the course oftrade”as: such is consider to act key the UK, to Similar has areputation. o character distinctive the to, detrimental is or of, advantage unfair takes cause due without sign the of use the and country this in reputation a mark has trade which a is mark trade the if protection enjoys mark trade the which for those to similar are which services or goods for mark trade the to similar or with identical sign a using • mark, or trade the with association of likelihood the including sign, the and mark trade the by covered or trade identity the to the sign of the becauseof similarity public the for exists confusion of likelihood the if sign a using • those forprotection, which enjoys it a using • The M a)
to offer provide sign, under the or services
MarkenG§14(2) MarkenG§3(1) Elements ofa TrademarkInfringement Action arkenG statesgrounds the followingfor wouldbe an action: infringement services from thoseofenterprises enterprise ofone other as protected be may combinations, colour and colours including wrapping, other as well as packaging,
sign which is identical to the trade mark for goods or services which are identical to identical are which services or goods for mark trade the to identical is which sign
105
trade marks if they are capable of distinguishing the goods or goods the distinguishing of capable are they if marks trade
heir wrappings orpackaging,
mark and the identity or similarity of the goods or services or goods the of similarity or identity the and mark
“in the course of trade”. The M The trade”. of course the “in
27
r the repute of the trade mark which which mark trade the of repute the r " . 104
arkenG provides some some provides arkenG
not CEU eTD Collection 111 110 109 108 107 106 todiscuss cybersquatting.trademark time is it law/infringement, rules the for laid been has groundwork the that Now • • • • • infringement action. defending party third The thefollowing: may (with provisos) assert some The b) • •
Exhaustion indications,Use spareand ofnamesbusiness descriptive parts of rightsExclusion the if registrationyounger ofwith isdefinitive a trademark seniority forfeiture ofrights lapse MarkenG§24 MarkenG§23 MarkenG§22
to usethe sign inbusiness goods orexport to import under the sign, MarkenG§21 MarkenG§20 MarkenG§14(3) Defenses to TrademarkInfringement Action M 107 reG rvds fw eess ht a b asre b oe eedn a trademark a defending one by asserted be can that defenses few a provides arkenG
111
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28
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110
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CEU eTD Collection 113 2014]. Mar 5 [Accessed: at: Available English). [online] World 112 parties third were that online names domain registering began types industrious that was this of result The names. domain as companies their register not did consequently, and initially, Internet the of potential compan most However, commercialized. became Internet the 1990‟safter mid to early the in began Cybersquatting online. address proper the to for people the human directing address readable names are simply above 1.1.2,domain insection issues and 3.2 History domains, in well especially names, registering of practice “The EnglishOxford Dictionaryas: defines cybersquatting Cybersquatting3.1 Definition case law indifferent country jurisdictions. cybersquatting/domaindiscussinginterplay name currentthe between status, its to up history its cybersquatting, define) to attempting (or defining by start will I cybersquatting. examin be will I Insection, this trademarks.and names I domain discussedsections, In previous the Introduction: Chapter3: Cybersquatting Duncan Spiers, Intellectual Property LawEssentials Property Intellectual DuncanSpiers, Oxforddictionaries.com. 2014. cybersquatting: definition of cybersquatting in Oxford dictionary (British & (British dictionary in Oxford cybersquatting of cybersquatting: definition 2014. Oxforddictionaries.com. Cybersquatting is a form of passing off which occurs on the Internet. the on occurs which off passing of form a is Cybersquatting the hope ofresellinga profit”. themat ing the relationship between domain names and trademarks in the context of of context the in trademarks and names domain between relationship the ing ‟ trademarks. This was not illegal at the time as domain name registers were were registers name domain as time the at illegal not was This trademarks. ‟
http://www.oxforddictionaries.com/definition/english/cybersquatting
73 (Dundee Univ. Press 2009). Press Univ. (Dundee 73 29
112 - e dd o raie h msie commercial massive the realize not did ies known company or brand names, as Internet as names, brand or company known
113 s and statutes and statutes and s
As explained in explained As
CEU eTD Collection 118 117 116 115 114 continuing of withthe examination the needdevelop the world for asystem for withcybersquatting. to dealing i kind its of act first the was which discouragesInternetand established destroystrademarks”. brand use, thevalue names of cybersqu stating: industry, the to damage extensive caused already had cybersquatting and dollars, billion 64.8 of tune the to increasing, drastically solutions. and problem 19 July 22 on meeting a had Congress US the that problem big a such became tidy profitnamegoes company when andisalready toregister it the realizes its registered. with associated names domain registering for company the to name the back on sell to intent the with companies known well rush” of trademarks “gold veritable a was There name. depend trademark from barred effectively thus is owner registercana person one wherethan more trademarks, becauseunlike mark own registeringtheir trademark The worldwide. name the to rights has providean any association withthe evidencename. of basis. served first come, first a on constructed Sykin See Llewelyn, and Cornish See Hearing before the Committee on the Judiciary United States Senate Serial No. J No. Serial Senate States United theon Judiciary Committee the Hearingbefore J No. Serial Senate States United theon Judiciary Committee the Hearingbefore Lindsay, Wyncot, Below I will provide an illustration of a typical instance of cybersquatting before before cybersquatting of instance typical a of illustration an provide will I Below Anti the was meeting Congress‟ of result The ever were there 1990‟s the Throughout probl a creates this However, supra Domain Name Abuse Name Domain
ing on their location in the world, only one person is entitled to use a domain domain a use to entitled is person one only world, the in location their on ing at
96
.
117 supra
oges ocue fo te etn ta Itre cmec was commerce Internet that meeting the from concluded Congress
at 8 at , 29 Int29 63
. n the world to deal with cybersquatting. The Act spurred on on spurred The Act cybersquatting. with deal to world the n cybersquatting lawsGermany. intheUS,UKand
em for the trademark owner as the domain name registrant name domain the as owner trademark the for em ‟l Prop
Newsletter 2 Newsletter 30 114 -
nraig ntne o cybersquatting. of instances increasing
ute, h apiat a nt eurd to required not was applicant the Further, - 115 tig udrie cnue confidence, consumer “undermines atting
Cybersquatting Consumer Protection Act, Protection Consumer Cybersquatting (2006).
- - 106 106 - - 39 39
99 to discuss the discuss to 99
116
118
It a CEU eTD Collection L.Rev. 119 economy national the to commerce Internet of importance increasing the to due cybersquatting 3.3.1 3.3 trademark owner. hundr reserved world a of slander in may engage cybersquatter a Furthermore, public. the with name good Walmart‟s of diminishment questionabl of content post from typically then will payment cybersquatter the made, not a is payment the If demand name. domain the Walmartfor then will extortion, to akin somewhat action an in cybersquatter, traffic of volume large the of advantage generally, thecybersquatter wouldhaveoff ofmaking methods several money hisregistration. to registered actually was site the course, Of be Walmart. to with associated it expecting “walmart.com” of search a using site Walmart‟s for search and online go will people most that knowing walmart.com like domain a register would cybersquatter typical The name. domain a as thing same the not is name known well or trademark a that knowing 3.2.1 Jennifer Golinveaux, Jennifer
US CybersquattingUS Law
A case typical cybersquatting Anti
641 (1999). 641 s ttd bv, h U Cnrs fud h get ed o nc a a t da with deal to law a enact to need great the found Congress US the above, stated As taking thus site, his to traffic direct to name known well the use can cybersquatter The not consumer a from arises that confusion the of advantage takes cybersquatter A - cybersquatting eds of well known names in the 1990‟s and then tried to sell them to the rightful the to them sell to tried then and 1990‟s the in names known well of eds
Alsos 119
Wh
ee: Panavision v. Toeppen, 945 F. 1296 945 Supp v. Toeppen, Panavision ee: at's in a Domain Name: Is Cybersquatting Trademark Dilution, Trademark Cybersquatting Is Name: Domain a in at's
Consumer Protection Consumer Act of1999(“ACPA”) e subject matter on the walmart.com domain name, resulting in a a in resulting name, domain walmart.com the on matter subject e
- wide brand. A classic example of this is Dennis Toppen, who who Toppen, Dennis is this of example classic A brand. wide
erhn fr amr.o. diinly the Additionally, Walmart.com. for searching 31
h cbrqatr and cybersquatter the
33
U. of San Francisco ofSan U. Francisco
CEU eTD Collection 122 121 120 differently analyzed is act this of element similar‟ „confusingly the that note to important is It 5) 4) 3) 2) 1) trademarkThus, inorder aclaim toassert under the ACPA, an mustprove: owner 2) 1) in badfaith profit withthe intent to whenname is: a domain ofaCybersquatting3.3.2 Elements Claim from the mark. profit to intention an with faith bad in name domain a as mark trade a of use or registration the The ACPA definescybersquatting as: 1999. L the of 43(d) section enacted they Thus, rights. owner trademark protect to and See Lafrance, See Lafrance,
15 USC §1125(d) 15 with abad faith profit. intent to the defendant used,registered, or traffickeddomain name; inthe marks, of, dilutive theowner‟s and mark; famous of case the in or to, similar confusingly or identical is name domain defendant‟s the markits isdist hasit avalid toprotection; trademark entitled defendant‟s was domain name registered. confusing or identical defendant‟s the domain name was or registered; time the at distinctive was that mark a to similar confusingly or identical a trademark a of owner The ACPAan gives
120 supra supra
inctive or famous;
at at 140. at 238 y iia t, r iuie f a ak ht a fmu a te ie the time the at famous was that mark a of, dilutive or to, similar ly .
122
121
32 cause of action against one who registers a mark mark a registers who one against action of cause
anham Act in Act anham CEU eTD Collection (VII) the person‟s provision of material and misleading false contact information when applying for applying when information contact false misleading and material of person‟s the provision (VII) o sell, transfer, to offerperson‟s the (VI) site a to location online owner‟s mark the from consumers divert to intent person‟s the (V) pe the (IV) of offering fide bona the with connection in name domain the any,of if use, person‟s prior the (III) the (II) 124 123 information, ortheperson‟sco prior contact accurate maintain to failure person‟sintentional the name, domain the of registration the a patte indicating conduct person‟s prior the or services, or goods any of offering fide bona the in name domain the use, to intent an having or used, having without gain financial for party third any of confusion as tothesource, sponsorship,affiliation, orendorsement site; of the likelihood a creating by mark, the disparage or tarnish to intent the with or gain commercial for rep goodwill the harm could that name domain the under accessible domain name; anygoods services; or otherwise toidentify commonly used thatperson; profit‟, the ACPA offers the following offacto list name. domain user‟s junior the and mark user‟s senior confusion‟analysis.of trademark „likelihood traditional the from (I See Lafrance, See Lafrance, ) the trademark or other intellectual other the trademark propertyrights ofthe person, or if any, thedomain name; in
extent to which the which to extent rn ofconduct; such rson‟s bona fide noncommercial or fair use of the mark in a site accessible under the under accessible site a in mark the of use fair or noncommercial fide bona rson‟s
supra supra
at at 238 at
238 domain name consists of the legal name of the person or a name that is is that name a or person the of name legal the of consists name domain
. .
nduct indicatingaofconduct; pattern such r otherwise assign the domain name to the mark owner or owner mark the to name domain the assign otherwise r 33
rs (non rs
124 - exhaustive) toconsider: exhaustive)
In examining the „bad faith intent to intent faith „bad the examining In 123
resented by the mark, either either mark, the by resented The ACPAthe at looks only
CEU eTD Collection (IX) the extent to which the mark incorporated in the person‟s domain name regist name person‟sdomain the in incorporated mark the which to extent the (IX) are knows person the whichnames domain person‟s(VIII)the multiple of acquisition or registration 128 127 126 establishe was 125 cybersquatting with dealing to approach UK and The Act Trademarks cases. the 1994 through the through cybersquatting with dealt have Courts English The UnitedKingdom 3.4 Cybersquatting Law First Amendment issues. tradem using sites sites parody on violations trademark no are there that held have courts some instance, For owners. trademark of rights the protect to needing also while expression, of freedom and trade to due difficulty have Courts cases. name domain believe the thattheuse domainname afair of was use orotherwise lawful‟. person the that determines court the which in case „any The shallnotbefound in: statesthatAct badfaith 3.3.3 DefenseClaim toaCybersquatting and the meaningdistinctive famous within (c)(1) ofsubsection ofthissection. registration names, of regard such without to the domain goods the orservicesparties; and of dom such of registration of time the at distinctive are that others of marks to similar confusingly or identical LucasFilm, Ltd. v. High Frontier, 622 F. Supp. 931, 934 931, Supp. F. 622 Frontier, Ltd.v. High LucasFilm, Utah Lighthouse Ministry, 527 F.3d at 105 at F.3d 527 Ministry, Lighthouse Utah (b)(ii) §1125 U.S.C. 15 (b)(i) §1125 U.S.C. 15 Unlike the United States, the UK has not specifically enacted a law for cybersquatting. for law a enacted specifically not has UK the States, United the Unlike treat to how on consensus a with up come not have courts the that noted be also should It i nms o dltv o fmu mrs f tes ht r fmu a te ie of time the at famous are that others of marks famous of dilutive or names, ain arks, but are not used in commerce but rather, to express ideas and thus lead to lead thus and ideas express rather,but to commerce in used not are but arks,
128
Thus herearea somecybersquatting ofdefenses instances claim. to
34
the complex nature of wanting to protect free free protect to wanting of nature complex the believed and had reasonable grounds to grounds reasonable had and believed 126 125
ration is or is not not is or is ration
d in the the in d 127
or
CEU eTD Collection 129 b clear is it However, available. be may off‟ „passing under remedy a site, cybersquatter the to traffic divert to them using or them parking simply of purpose the for groupas hisproducts theirs‟. of or that of part as off himself pass to is that and address, domain a such use to wish should group Spe & Marks the of part not was who anyone why reason possible one only is 'There in trades domain names”. also Court noted: The who registrant the by provided services the to relation in used be will they Further p the is That origin. indicate names domain The marks. trade registered to similar confusingly are which names domain the sell to seek appellants “the 10(3), stating: domain names. the registered merely had but services, or goods with domain connection in trade of the course the in names used not had defendants the that issue the Namely, framework. law mark trade to struggled and th to due case Internet the decide to how determine the for authority central no was there that time the at noted Court The britishtelecom.com. cellnet and britishtelecom.net; britishtelecom.co.uk; marksandspencer.co.uk; marksandspencer.com; sainsburys.com; sainsbury.com; Ltd. Million a in One v TelecommunicationsPlc British is cybersquatting on case English landmark
1998 FSR 265 1998 129
Thus here, we see that in the UK, if one can show a pattern of registering domain names domain registering of pattern a show can one if UK, the in that see we here, Thus under analysis infringement trademark off‟ „passing a conducted eventually Court The ladbrokes.com; names: domain following the registered had defendant(s) the case, this In
e difficulties in dealing with cybersquatting within the the cybersquattingwithin with dealing in difficulties e 35
urpose for while they were registered. registered. were they while for urpose ased on classical trademark trademark classical on ased nt b.r; virgin.org; bt.org; .net; ncer Plc Plc ncer CEU eTD Collection ofconfusion”. likelihood any is beyond therefore, and, company‟sa branch outside or activity commercial 131 130 aga mark normal its outside operational area”. its of use the of result a as affected is function business company‟s “a where cases in (BGB) case. infringement name domain a to applied be will 2.5 section in above law mark trade for out laid “MarkenG”). mentioned previously the Act, Mark handle typically courts under (specifically German principles. law mark Kingdom,trade the through cases United cybersquatting the like Also claims. cybersquatting Germany3.5 Cybersquatti cybersquatting resolved. claims are One the point, this at though clear is It law. trademark traditional into cybersquatting squeeze would they that determined then unpunished, go cases cybersquatting letting of implications policy the considered courts English that clear is the in use be to seem not would them. into elements, infringement See Pechan, Pechan, See See nt nar optto (eezee dn natrneteeb (“UWG”). unlauterenWettbewerb den (Gesetzgegen competition unfair inst
Pechan, Pechan, Additionally, a party seeking protection could assert a claim under the German Act Act German the under claim a assert could protection seeking party a Additionally, cover to statute specific a passed not has Germany Kingdom, United the to Similar it parking then and name domain a registering simply that argument the instance, For utemr, rtcin a b aalbe ne sect under available be may protection Furthermore,
supra supra i.e. ; the economic harm and social costs incurred by rightful trademark owners trademark rightful by incurred costs social and harm economic the ;
at 167. 167. at 167. at
Stating: that the English courts had to really stretch to fit cybersquatting claims claims cybersquatting fit to stretch really to had courts English the that
ng Law “This occurs whenever the company mark is used outside itsnormal outside used markis company the whenever occurs “This course of trade as one is selling or buying anything. However, anything. buying it or selling is one as trade of course
- in - a
- Million analysis is the standard British case by which which by case British standard the is analysis Million 131
36
130
hs yial nGrayte elements the Germany in typically Thus, o 1 o te emn ii Code Civil German the of 12 ion the 1995 Trade 1995 the 132
However,
, and and , CEU eTD Collection 133 132 Harmonization Directive, and isanavenue complainants thus for consider. to Civil Germanthe of 826 policysection public under damage contraryagainstto intentional prohibition general the particularly protection, in gaps fill to used are civil of provisions general the law, of competition are already covered by trademark laws. aspects generally because date to minimal been have Act this under claims name domain See Pechan, Pechan, See Pechan, See Code”. It should also be noted that Germany has also implemented the Trade Mark Mark Trade the implemented also has Germany that noted be also should It state further Pechan Lambert Dr. supra supra 133
at 167. at 167. at
s that “In addition to competition law and trade mark trade and law competition to addition “In that s
37
CEU eTD Collection 134 you(ii) legitimate norightsinrespect have or interests ofthe and domainname; the complainant and has rights; which in mark service or trademark a to similar confusingly or identical is name domain your (i) for proceedings administrative mandatory particular classes ofdisputes. ICANNThe tha rules state are there that every in provides reference agreement by incorporatedregistration provision a ICANN, through name domain a registers a When names. domain of registrations abusive contest to trademarks of Basis 4.1.1 Contractual Resolution for MandatoryDispute Disputeof Resolution4.1 Courts Outside name domain and cybersquatting to infringement relation in remedies above the of each discussing be will I section this In courts. national the to go or grievances, their hearing providers resolution go remedies: two have violations cybersquatting alleging those Generally, cybersquatters. by Internet the of world virtual the in violations for marks of holders world real for protection provide to important vitally became year each doubling roughly been has Cybercrime Introduction: ChapterFour: Remedies Reid Goldsborough, Reid ICANN (through the UDRP) offers expedited dispute resolution proceedings for holders holders for proceedings resolution dispute expedited offers UDRP) the (through ICANN .
Cybersquatting and Its Possible Remedies, Possible Its and Cybersquatting
hog te ICANN the through 38
23 - t mandatorywhen: proceedings apply ntttd DP rcs, ih dispute with process, UDRP instituted (38) (38)
9(2009).
since 2003 since
domain name registrant name domain 134
and therefore, it therefore, and
CEU eTD Collection 138 137 http://www.icann 136 http://www.icann.org/en/help/dndr/udrp/policy 135 you(ii) legitimate norightsinrespect have or interests ofthe and domainname; the complainant and has rights; which in mark service or trademark a to similar confusingly or identical is name domain your (i) name. domain the registeringforUDRP upon obligationthe contractual participateain is process. This registrant a When I.Necessary Prove to under Elements UDRP 4.1.2 process Now, are that panelists employ providers service The • • • • • to choose from. Currently, thereareproviderssite: ICANN five approved onthe yo(iii) Once a claim is submitted to ICANN, they provide a list of approved dispute service providers providers service dispute approved of list a provide they ICANN, to submitted is claim a Once
Arabfor Name Center Dispute Domain (“ACDR”). Resolution the Czech Arbitration Court InternetArbitration (“CAC”) for Disputes WIPO National Forum(“NAF”)Arbitration Asian Domain See Lindsay,See See Wright, Icann.org. List of Approved Dispute Resolution Service Providers Service Resolution Dispute Approved ListIcann.org. of Icann.org. Uniform Dispute Resolution PolicyUniform (UDRP) 138 I ur domain name has been has andurbeing registered domain name is inbadfaith. used
. will
A a complainant claim UDRP submitting to assert must the following elem
Uniform Domain Name Dispute Resolution Policy Resolution NameDispute Domain Uniform
look at the UDRP remedy and remedy UDRP the at look supra supra .org/en/help/dndr/udrp/providers Name Dispute CenterName Resolution (“ADNRC”)
at
registers a website through ICANN, he/she is then contractually obligated to to obligated contractually then is he/she ICANN, through website a registers at at 195. 103
.
[Accessed: 10 Mar 2014]. Mar 10 [Accessed:
[Accessed: 10 Mar Mar 2014]. 10 [Accessed:
examine some of some examine
39
experts in trademark law and internet issues. internet and law trademark in experts
(2014)
(2014)
| ICANN. [online] Available at: |Available [online] ICANN.
the
| ICANN. [online] Available at: Available |[online] ICANN. 136
benefits and drawbacks of this this of drawbacks and benefits
135
ents
137
CEU eTD Collection 140 139 Internet. thus, and faith, bad of finding a for sufficient be would presented of evidence the of any that here appear would It yourweb a orproduct site web location orservice or or of onsite location. to as mark complainant's the with on other or site web your to users Internet gain, commercial for attract, to attempted intentionally have you name, domain the using by (iv) a competitor; or b the disrupting of purpose the for primarily name domain the registered have you (iii) engaged ofconduct; inapattern or such have you that provided name, domain corresponding a in mark the reflecting from mark service pre to order in name domain the registered have you (ii) pocket tothedomain costsdirectlyname; or related out documented your of excess in consideration valuable for complainant, that of competitor name domain the is who transferring complainant the otherwise to or registration renting, selling, of purpose the for primarily name domain the acquired have you or registered have you that indicating circumstances (i) evidence the a registration of be shall present, be to Panel the by found if limitation, without but particular in circumstances, your(iii) been has domain registe name http://www.icann.org/en/help/dndr/udrp/policy http://www.icann.org/en/help/dndr/udrp/policy The UDRP Rules continue, stating: for the purposes of Paragraph 4(a)(iii), the following the 4(a)(iii), Paragraph of purposes the for stating: continue, Rules UDRP The
a decision ordering removal or destruction of the domain name from the the from name domain the of destruction or removal ordering decision a nd use ofaname inbadfaith: domain
h ore pnosi, fiito,o nosmn f your of endorsement or affiliation, sponsorship, source, the red andredbeing is inbadfaith. used
(paragraph 4(a)(iii) (paragraph 4a) (paragraph the owner of the trademark or service mark or to a a to or mark service or trademark the of owner the - line location, by creating a likelihood of confusion of likelihood a creating by location, line 40
et h onr f h taeak or trademark the of owner the vent
139 140
usiness of usiness - of - CEU eTD Collection http://www.wipo.int/amc/en/domains/search/over 147 D2000 Moronica, 146 145 144 143 142 141 generallywill majority apply the panel UDRP a precedent, case in materialized have to seems view consensus majority a where manner.predictable fair,and effectivea in operating is system the that feel participants simi a in decided be should circumstances similar involving case in decisions that important is it that understand UDRP the of inconsistent panels However, to results. UDRP led occasionally has decisis stare no and standards differing of combination panels determineweight to evidence the presented. of different by applied being standards different to lead has discretion broad this because, issue an evidence gives it weight the in discretion broad very Panel the gives 15(a) paragraph respondent. the to shifts then proof a only that held have negative. a establish to respondent require would which name, domain a in rights or interests legitimate no has respondent the that establish to complainant the regard In not. than likely more were they established 50%. above bit a mean to understood evidence'. of is three and one elements for proof of standard The exists. elements three the of Lindsay,See Lindsay,See Lindsay,See Lindsay,See Do Lindsay,See WIPO, WIPO Overview of WIPO panel Views on Selected UDRP Question (23 Mar 2005) available at available 2005) Mar (23 Question UDRP Selected onViews panel WIPO Overview of WIPO WIPO, minique Demougin& Claude Fluet. Claude minique Demougin& Furthermore, the UDRP has not implemented a formal doctrine of stare dccisis. stare of doctrine formal a implemented not has UDRP the Furthermore, each prove must who complainant, the on is proof of burden the UDRPprocedure, the In 141 supra supra supra supra supra -
0405 (27 June 2000) ('the principle of state decisis ('theof state principle (27 June2000) 0405 A preponderance of evidence means 'a balance of probabilities' and is usually is and probabilities' of balance 'a means evidence of preponderance A
at 154. at 15 at 154. at 154. at at 154
prima facie case be made by complainant, and if successful, the burden of of burden the successful, if and complainant, by made be case facie prima 5 . .
Note: could also cite here: Societe des Hotels Meridien SA v United Statesof vUnited SA Meridien Hotels des Societe here: cite also Note:could
view intheoffairness interest andconsistency. Preponderance of Evidence, of Preponderance 144 142
In discussing evidence, it is important to note that UDRPthat note to important is it evidence, discussing In
view/index.html Thus, the elements would be proved if the complainant the if proved be would elements the Thus, 41
to the second element, the UDRP requiresUDRP the element, second the to
does not apply in these proceedings') in these notapply does
50
( 4 ) 143
Eur. Econ. Rev.964 (2006). Rev.964 Econ. Eur.
Thus, previous panel decisions panel previous Thus, lar manner. This ensures that ensures This manner. lar
'preponderance . 145
147
146
This is This Thus,
The CEU eTD Collection 149 148 utilizing one methodsofdefense ofthese able toprevail wouldbe inaUDRP panel at issue.' forgain commercial intent without name, domain the of use fair or noncommercial legitimate a making are you (iii) youdomain name, even or have if acquiredorservicerights; notrademark mark bus individual, an (as you (ii) fide bona a offeringgoods with orservices; of or connection in name domain the to corresponding name a or name domain the use, to preparations demonstrable or of, use your dispute, the of you to notice any before (i) legitimate tothe domainname interests for ofParagraph purposes 4(a) or rights your demonstrate shall presented, evidence all of evaluation its on based proved be of 'Any present asa defense: panels. UDRP of majority a by rejected been have enrichment unjust and forfeiture waiver, laches, as such defenses, Equitable II. Defenses UDRP under toexaminesome defensestime thatasserted. may be http://www.icann.org/en/help/dndr/udrp/policy Lindsay,See Thus, it would appear that any respondent that can negate one of the three elements elements three the of one negate can that respondent any that appear would it Thus, defenses the strike us let with, begin To is it complainant, the by proved be must that elements the examined have we that Now the following circumstances, in particular but without limitation, if found by the Panel to Panel bythe found if limitation, without but particular in circumstances, following the 149
supra
at 15 at
to misleadingly divert consumers or to tarnish the trademark or service mark ortotarnishconsumers orservice thetrademark divertto misleadingly
5 .
iness, or other organization) have been commonly known by the by known commonly been have organization) other or iness,
148
UDRP Rules state the following as acceptable evidence to evidence acceptable as following the state Rules UDRP
(paragraph 4c) (paragraph 42
hc ae o aalbe ne te UDRP. the under available not are which
(ii):
decision.
CEU eTD Collection situations/ http://trademarkcopyrightlaw.wordpress.com/2011/07/25/3 152 situations/ http://trademarkcopyrightlaw.wordpress.com/2011/07/25/3 151 http://www.wipo.int/amc/en/events/conferences/2000/presentations/bernstein/sld002.html 150 benefit. However,are proceeding thereunderUDRP to drawbacks inaclaim the process. courts. national the through matter the pursue still can grievance his for redress obtain to failing complainant a that is process UDRP the to benefit added Another process. of service and jurisdiction with problems into run don‟t you because process. UDRP the through claim a resolving to benefits clear are there see can one and front up retainer average an that fact the to that dollars. US $4,000 approximately costs typically three of panel resolution dispute A court. a in matter the litigating than cheaper considerably be can process the Furthermore, case, court federal typical a than faster considerably is This instance, from filing thetypical inthe UDRP time todecision isapproximately days. sixty process”. appellate of availability and procedure of simplicity jurisdiction, international is there effective, cost its resolution, “rapid are system court national the to opposed as provider 4.1. CliffKuehn, CliffKuehn, Wipo.int. Benefits of the UDRP Benefits ofthe Wipo.int. 3
The BenefitsResolution Provider ofDispute world effect having decisions UDRP that clear is it Additionally, service resolution dispute a through going of benefits the site, WIPO the to According
[Accessed: 10 Mar 2014]. Mar 10 [Accessed: 2014]. Mar 10 [Accessed:
S Cybersquatting in Litigation Over of UDRP Advantages 3 3 Advantages of UDRP Over Litigation in Cybersquatting Situations Cybersquatting in Litigation Over UDRP ofAdvantages 3
(2014)
attorney litigating a federal matter will typically charge a $10,000 $10,000 a chargetypically will matter federal a litigating attorney . [online] Available at: . Available [online] 43 - -
advantages advantages
Thus, this could be construed to be an added an be to construed be could this Thus, - - of of - - which can run the course of years. of course the run can which udrp udrp ituations - - over over
(2011)
- - (2011) litigation litigation - wide is a hu a is wide
[Accessed: 10 Mar 2014]. Mar 10 [Accessed: . [online] Available at: Available . [online] . [online] Available at: Available . [online] - - in in - - cybersquatting cybersquatting 152 ge benefit benefit ge
Contrast 150
151
- - For
CEU eTD Collection 158 (2008) 157 156 155 forClients?, the "Cents" More WhichMakes 154 153 goe so and result, the like oftheadjudication a matter, regardedthat is finalas party by one the other party doesn‟t then and decision a issue can they that UDRP the for much say not does It process. UDRP the of power panel‟s the challenges respondent decision”. the event the in jurisdiction mutual of court a to submit to agree must arbitration UDRP initiate who “Complainants notes: Silbert Sarah As binding. was process UDRP that feel don‟t they if court national a in matter the pursue member increase panels stability to indecisions. seemed dec the in inconsistency precedents). case (following decisis stare of name. Furthermore, dam monetary section in discussed UDRPthe of remedylimitedin criticisms the available. isup usuallycomes that 4.1.4 Jenny Ng, The Domain Name Registration Name Domain The JennyNg, Silbert, Sarah Wright, See See Wright, L.Kilpatrick, Diane See Wright,
The Drawbacks of the UDRPthe The Drawbacks of Resolution Provider Process Dispute available at available The reason this is a drawback is because it generally sh generally it because is drawback a is this reason The discussed been already has drawback last The doctrine the follow to required not are UDRP panelists noted, Additionally,previously as through remedy a pursuing to drawbacks few a There 157 supra
supra supra Using a UDRP Action to Prevent Infringing Uses of Domain Names, Uses Domain of Infringing Prevent to Action UDRP a Using http://www.lacba.org/Files/LAL/Vol30No11/2454.pdf.
at 195. at
ICANN Dispute Resolution Vs. Anti Vs. Resolution Dispute ICANN at at 195. at 19 , UDRP only allows for the cancellation or transfer of the offending domain domain offending the of transfer or cancellation the for allows only UDRP ,
8 isions of the court, however a more recent study has shown that three that shown has study recent more a however court, the of isions .
s to the national court system, who then overrule the UDRP Panel. UDRP the overrule then who system, court national the to s
ages are not available, nor arerelief.ages notavailable, isinjunctive
2 System26 (Routledge 2012). (Routledge System26 Hous. Bus. & Tax L. J. Tax & Bus. Hous. 155 44 -
cybersquatting Consumer Protection Act Remedies: Remedies: Act Protection Consumer cybersquatting
hs a ld n h ps t algtos of allegations to past the in led has This also 156
299 (2002). 299 as a benefit, that being, one can still still can one being, that benefit, a as
the UDRP Process. The first one first The Process. UDRP the ows the lack of real precedential real of lack the ows
2008
Los Angeles Lawyer Los Angeles 153 proper, 154
As pr As
final eviously
and and 10 158
CEU eTD Collection Act 160 159 jurisdiction. obtain the court first must court, the before party a bring serve properly to order In jurisdiction. be will courts national the cases 8.1mo was court for duration average The litigating. room court the in time more means often remedies Drawbacks: and injunction as such UDRP moneta the than remedies more offers it that is system court US the of benefit a However, name. domain offending the of transfer or cancellation of remedy the to or State the through file can Benefits: States 4.2.1 The United NationalJurisdiction 4.2 cybersquatting/domain infringementclaims. name syst judicial national the discuss will I section, next the In time. and money of lot a cost or save, potentially could it as claim a filing when consider to factors important feelings ofinjustice orinstability inthe UDRP process certain by participants. to lead may consequently, and too” it eat and cake, their “have potentially can one essence, In See Wright, Andrew J. Grotto, Grotto, AndrewJ. , 2 C 2 olum. Sci. & Tech. L. Rev.3 L. &Tech. olum.Sci. ry damages in addition to theUDRP to ry damages inaddition remedies. There are some drawbacks to filing in the national court system. The availability of more more availabilitysystem. of court national The the in filing to drawbacks aresome There UDRP through the youyouclaim a file can Process in the US or As previously discussed, exami In
supra ning the benefits and drawbacks of the UDRP process, it is clear that these are these that clear is it process, UDRP the of drawbacks and benefits the ning nths compared to 10 weeks for UDRP.nths comparedfor to10weeks Due Process and In Rem Jurisdiction Under the Anti the Under Jurisdiction Rem In Process and Due
at at 19
8 (U.S.) .
Federal system. Under the UDRP process, one is of course limited limited course of is one process, UDRP the Under system. Federal
.
(2001)
160
This can present problems in the This can in present problems 45
159
Furthermore, a issue big withfiling in - Cybersquatting Consumer Protection Protection Consumer Cybersquatting
context ofthe internetcontext ems as a remedy for for remedy a as ems
CEU eTD Collection 164 163 162 161 protection mark trade under or cancellation to right no normally is there that name domain the of use on injunctions as such remedies offered directive. marks trade the of 5(1)(a) article through vis a vis and Act through courts national the under remedy a pursue may one UK, the to similar Germany 4.2.3 generallybut alsowill more and intime cost money. time, courts saves national the through and Litigating expensive limited. is remedy less the however is UDRP US. the to similar very are UK the in drawbacks Union. Europea the of Directive marks trade the of 5(1)(a) article the consequently,through and 1994 UnitedKingdom 4.2.2 process. US the before claim a bring to whether considering in registered was name Taiwan. domain the but US, the in suit bringing be may complainant the as See Pechan, Pechan, See Pechan, See Pechan, See Intellec Howell, Claire & Bainbridge David Similar to the US and the UK, one can seek redress in Germany through the UDRP. the Germanythrough in redress seek can one UK, theAlso and US the to Similar throughthe Traderemedyare foravenues available the Mark Kingdom, United Inthe Act party a by considered carefully be should drawbacks and benefits potential These 161
Similar to the US, one may also file through the UDRP for redress. The benefits and benefits The redress. forUDRP the through file also may one US, the to Similar supra supra supra
at 167. at 169 at 167. at
.
(U.K.) 164
, however this remedy might be available based on a claim under claim a on based available be might remedy this however ,
tual Property Law Property tual 46
ovyne f dmi nm i Germany in name domain a of conveyance
175 (Pearson Longman 2011). (Pearson 175 or sse, r o hog te UDRP the through go or system, court 163
however, it should be noted be should it however, 162
provides more remedies, more provides The German courts have courts German The
their Trade Mark TradeMark their n CEU eTD Collection 165 todeterminetime there whether are than thecurrent solutions better inplace. system courts per UDRP rules. satisfactor a get can one if determine law. competition See Pechan, Pechan, See Having considered the available remedies under UDRP and national system, it is now now is it system, national and UDRP under remedies available the considered Having supra 165
at 173 at
hs n emn, t a b avnaeu t g truh DP is to first UDRP through go to advantageous be may it Germany, in Thus
.
y result. If not, then one can always file with the German the with file always can one then not, If result. y 47
CEU eTD Collection orhttp://dx.doi.org/10.2139/ssrn.1445452. http://ssrn.com/abstract=1445452 Cyberspace, of Regulation 168 http://www.state.gov/s/inr/rls/4250.htm 167 166 Kulesza, quoting Roseanne S. tomean: defines“Aterritorial” in the virtual wor occurring acts for jurisdiction establishing to slope slippery the see to begins one world, physical the in occurring acts with establish to enough difficult is jurisdiction that considers one When jurisdiction potential 195 are there that essentially means world. the in states independent 195 currently are there instance, For today. to extends jurisdictions order. international establish sense, some in to treaty first the was and states sovereign other of affairs the in interfere not vast to opposed as sovereignstate th from dating time, 5.1 the problems. to solutions possible offer then and cybersquatting with issues jurisdictional modern discuss then and statehood of concept the of introduction brief very a give will I section, this In Introduction: Chapter5: Solutions Joanna Kulesza , Kulesza Joanna (Viking 2011). AngelsOurNature283 of Better The Pinker, Steven U.S. Department of State. Independent States in the World in the States Independent State. Department of U.S. Statehood and 167 Dr. Joanna Kulesza considers this issue, noting that the Internet is “aterritorial”. is Internet the that noting issue, this considers Kulesza Joanna Dr. it because implication huge a is this cybersquatting, and Internet the of context the In of annals the in one new relatively a is boundaries national and statehood of concept The
Internet Governance and the J the and Governance Internet ld
where informationacross states travels e Treaty of Westphalia in 1648. in Westphalia of Treaty e
2008 JurisdictionalIssues
III GigaNetSymp. Working Paper GigaNetSymp. III Working
166
[Accessed: 11 Mar Mar 2014]. 11 [Accessed: hs nesadn o saeod n svrin ertre a territories sovereign and statehood of understanding This empires. It established the notion that a sovereign state should should sovereignstate a that notion the Itestablished empires. urisdiction of States: Justification of the Need for an International International Needan for the of Justification of States: urisdiction
48
(2014)
This Treaty ushered in the concept of the the of concept the in ushered Treaty This
1 (2008) 1 . [online] Available at: Available [online] .
s with different laws and regulations. and laws different with s at dizzying speeds
. A
vailable at vailable :
SSRN: SSRN: .
168
Dr. nd CEU eTD Collection 2014]. http://www.ip.mpg.de/en/pub/research_teaching/ip/main_areas/concept_of_territoriality.cfm at: Available [online] Property. Intellectual on Impact 170 169 Institute Planck Max thusly: describes it consideringof theprinciple territoriality. a to akin become real of issue definite very the See Ip.mpg.de. 2014. Max Planck Institute for Innovation and Competition and Innovation for InstituteMaxPlanck 2014. Ip.mpg.de.
Kulesza, Kulesza, structuring theprotecti principle recognised internationally an considered be therefore can and protection property intellectual on conventions multilateral as well as laws IP regional and good. immaterial same the on other each alongside exist may regimes legal different to subject are which rights protection regional and national independent, other each from and lim is right IP an of protection of scope territoriality,the of principle the to “According against set Internet the of boundaries limitless the and cybersquatting with dealing When subject ofagreement”. put beings human that use the control can law The beings. human by made impulses electromagnetic by used and there, simply is It characteristics. natural known no has it way: any in identified or felt be cannot is cyberspace spaces, other “Unlike supra ited to the territory of the State where the right is granted. Thus different, Thus granted. is right the where State the of territory the to ited
at 1. at virtual virtual
The principle of territoriality forms the basis for both national both for basis the forms territoriality of principle The Gordian
169 on of IP of on rights”. - world boundaries and jurisdiction of the Nation State, the issue the State, Nation the of jurisdiction and boundaries world
knot. This jurisdictional problem is clear especially when when especially clear is problem jurisdictional This knot.
170 invisible, unidentifiable, irrefragable, and and irrefragable, unidentifiable, invisible, 49
-
to it, and its use can be a a be can use its and it, to The Concept of Territoriality and its and Territoriality of Concept The
[Accessed: 11 Mar Mar 11 [Accessed: CEU eTD Collection 173 172 2014]. http://www.ip.mpg.de/en/pub/research_teaching/ip/main_areas/concept_of_territoriality.cfm on Impact 171 one be, the law cannotwill what then that ocean was, wouldbean or of besure chaos. is of If Internet. the of growth intellectual and economic inhibiting thus instability, potential produce necessitate lawsthepace new thatadapt change. theneedcan for to of to seem also would changes Internet the which at speed rapid the Furthermore, framework. and with problems Internet solve to difficult be would it that clear law,seems existing it into cases infringement name cybersquatting/domain fitting trouble of development subsequent di previously (multilateralists). needed are laws new thus and phenomenon new entirely an is (unilateralists) framework, and law existing through solved be can Internet Solutionsto 5.2 CybersquattingJurisdictional and Issues solution to like would Imind, in Withthis justice. to infringers bringing and IPrights enforcing sove and territoriality of principle the Internet, the of reach Namely,the issues. to jurisdictional due that evidences by side side internet, the aterritorialityof socio and IP of political dimension law, social which isbased ona economic, the on emphasis an toward sovereignty of understanding strict a from shift a observes one territoriality, justify to attempts the “in notes: further Planck Max See Kulesza, Kulesza, See Kulesza, See Ip.mpg.de. 2014. Max Planck Institute for Innovation and Competition and Innovation for InstituteMaxPlanck 2014. Ip.mpg.de.
n h fi sd, as ht hf rpdy nuh o ep rc wt te Int the with track keep to enough rapidly shift that laws side, flip the On impor it solutions examining In the and territoriality of principle the of definitions the of examination cursory a Even s Intellectual Property. [online] Available at: Available [online] Property. Intellectual
to the issue. supra supra scussed sections in this paper on the development of the Internet, and the the and Internet, the of development the on paper this in sections scussed
at 15. at 1 at
5 .
tant to determine whether one thinks the problems problems the thinks one whether determine to tant 50
locally ofinterests”. determined balance reignty of states are not sufficient for for sufficient not are states of reignty -
The Concept of Territoriality and its and Territoriality of Concept The
172
[Accessed: 11 Ma 11 [Accessed:
or that the Internet the that or 173
In looking at looking In ernet would would ernet existing law existing examine 171
r
-
CEU eTD Collection 176 175 http://www.wgig.org/docs/WGIGREPORT.doc 174 intergovernmental and • and society international organizations. civil sector, private the Governments, of involvement full the with multilateral, democratic, be will function governance the for form organizational The • governance. pre a have should Government single No • “Report standards sets for theminimum an exchange: international such Dr. Kulesza, citingthe reportnotesthat: WGIG andweighviable governance areallowed part of to thesolution inonsolutions. not a not are they like feel actors some if obtain to difficult be will consensus treaty,a international cyb like issues combat to necessary regulations the achieve to necessary be will AInternet. consensus the of issues regulation and law current the resolve to able be will extra reaching, far the of because cybersquatting as such issues to relating laws and regulation Internet sector. pri the encompass must Internet the of governance 2005. in (“WGIG”) on Governance Group Internet Working the instituted Nations United the Internet, the of cooperation/regulation
See Kulesza, Kulesza, See Kulesza, See The organizational form for the governance function will involve all stakeholders and relevant and stakeholders all involve will function governance the for form organizational The United Nations Working Group on Internet Governance, Report, UN WGIG, 2005, available at: available 2005, WGIG, UN Report, Governance, Interneton Group Working Nations United - territori 175 This cooperation against cross sectors will be instrumental in shaping the future of of future the shaping in instrumental be will sectors cross against cooperation This o institution the in proactive be to effort an In
supra supra al reach of the Internet. Neither one country, nor even twenty countries or actors actors or countries twenty even nor country, one Neither Internet. the of reach al
at 20 at 1 at
8
. . international organizations their respective within roles”.
(WGIG R (WGIG 174
- mnn rl i rlto t itrainl Internet international to relation in role eminent
51 h rpr md te on ta rglto and regulation that point the made report The aport).
vate sector, the governmental sector and civil and sector governmental the sector, vate
nw ue ad international and rules new f
rqatn. ie an Like ersquatting. 176 transparent and and transparent
CEU eTD Collection 178 177 law,German no violates which Germany in content produces or name domain a registers Bruno he be thathe will subject isfamiliar laws with, being to a ofthat citizen state. that knowing Berof stability the have least at would one in Thus, Germany. in regulation/punishment faith bad in name domain Internetstate concerning toregulateactions their issues. • governance Internet new provide relief tooffenses such as cybersquatting This installing in avoid accountable. to held trying are be we may what exactly he is uncertainty jurisdiction(s) which sure be not could one because content web producing or business a starting in action decisive take never could one because jurisdic different world valid is name the domain and Florida in name domain a register can one know, we As broad. too is infringement, a stateonline content mayaction produces takean if effect their within borders. in • own. then and these of some examine will IInternetgovernance. to solutions 5.2.1 PrinciplesProposedasSolutions E Personality Principle Personality See Kulesza, Kulesza, See Kulesza, See ffects principle ffects
O a registering actor German A possibility. viable potentially a like seems principle The effectiveil while principle,in This possible as about bandied principles of types different few a surveys Kulesza Dr. e su wt ti princip this with issue ne supra supra tions. Would governing under this principle be reasonable? It would seem not not seem would It reasonable? be principle this under governingWould tions.
at 1 at 1 at (effective jurisdiction principle). This principle stands for the proposition that that proposition the for stands principle This principle). jurisdiction (effective
2 2 . .
stands for the proposition that the citizenship of an actor would allow a allow would actor an of citizenship the that proposition the for stands -
wide, and thus producing potential infringement issues in many many in issues infringement potential producing thus and wide, e ih b a ae hrb te olwn ocr. ht if What occurs. following the whereby case a be might le
i wud oceey nw ht e s xoe to exposed is he that know concretely would lin lustrating in which cases states may take action against against action take may casesstates which lustratingin 52 .
178
make a suggestion of my my of suggestion a make
177
to to
CEU eTD Collection 179 che passport no are There online. borders no are there because country a to threat direct a pose online dispersed and uploaded content any nearly that argument the make could one all, After none. has it where jurisdiction obtain to wording this adv take easily could state a that conceivable is It act. may state the state‟, a to threat or cybercrime by on action cybersquatting harmful from citizens their protecting in proactive be thing to states good allows it a because is This there. action potential face will he state, or forum particular a towards the state. “directlytargeted”are to which or state, a to threat direct a pose which where actions jurisdiction • uncertainty the effects indealing with principle. same the into spiral could uncertainties the However, accountable. where jurisdiction one least at know would one that in positive is principle the So, common. quite be actually could outlined above scenario the and states different for laws divergent numerous are there Thus, time. something a highly thatwouldbe unusual situation. sc This less. than rather actors Internet for insecurity more produce that questions all are These Bruno? prosecutes Germany if applied be shall law Who‟s B? State to expedited prosecuted be to expect to Bruno for reasonable it Is State? another in infringement caused has it however, Protective See Kulesza, Kulesza, See However, this principle still seems still principle However, this can actor An hand. one on nice seems principle This of juncture this at law Internet unified no is paper,there this in mentioned previously As 179
in his own State for something that breaks no law in his state? Should Bruno be be Bruno Should state? his in law no breaks that something for State own his in Jurisdiction Principle Jurisdiction supra
at 1 at
2 .
e act committing an directed tothe intentional state oritscitizens.
. This principle stands for the proposition that a state may have have may state a that proposition the for stands principle This . over inclusive over 53
cks nor armed guards. As soon as the as soon As guards. armed nor cks
to me in that if an actor „poses a direct a „poses actor an if that in me to know that if he directs his conduct his directs he if that know enario is not is enario antage of of antage
CEU eTD Collection constituted. be would body, governing a consequently, and Constitution Internet an how on paper whole it power vast the to due Internet the governing in position lead for jockey states (will political the to instance) for decisions enforce to afford actually can state (which practical the from ranging issues of because answer to difficult be might question Interneton tothe and be willing Constitution, toenforce provisions. its t of middle the in island outpost an from connection, a has that world the in location states. Anyfew a of problem the simply not are spheres its within occurring violations and Internet the as states a formulating in United key The the (“UN”). Nations and (“EU”) Union European the are examples Some organization. international an to sovereignty some ceding states of examples real already are there question, this to regard Internet.pertaining tothe This leads a to potential few issues: laws in certainty of assured be could actor an which court, a by enforced laws Internet specific a to lead would constitution this Ideally, nation. every virtually into reaching Internet the to due world the around nations all nearly of participation the to need threat. direct a posing infringement the justify can they as long so jurisdiction, universal state a giving nearly effect, in Thus exist. could threat direct a registered, name the or uploaded, is content he Pacific to London, is susceptible to Internet infringement issues. States will need to sign sign to need will States issues. infringement Internet to susceptible is London, to Pacific he Secondly, who would enforce the decisions of the governing body and its court? This court? its and body governing the of decisions the enforce would who Secondly, i an to sovereignty cede to willing be states would Firstly, would solution This Constitution. Internet International an is solution possible Another
n international organization will be participation of participation be will organization international n 54
would bring?). One could write a write could One bring?). would
nternational organization? In organization? nternational nent oenn bd and body governing Internet
CEU eTD Collection landscapeInternetwould be the thebestfor cybersquatting. solution of changing ever the fit to enough adaptable be to formatted and incepted specifically constitution tortois the of Internet issuesstabilizing relatedto such issues infringement as cybersquatting. am cooperation require would The Internet is a completely new development that current laws are suited for.suited are currentlaws case that Itadevelopment is new completely aInternet is The I n the opinion of this author, the Internet Constitution is the best solution because it it because solution best the is Constitution Internet the author, this of opinion the n e and the hare, with cybercrime being the hare and the law being the tortoise. A tortoise. the being law the and hare the being cybercrime with hare, the and e ongst states in its formation and would also have the effect of of effect the have also would and formation its in states ongst 55
CEU eTD Collection trademark law. t continue will actions infringement name domain future, foreseeable the for that go of loss as such consequences world real of lots cause online infringement. t internet the with conjunction in law of system a need We speed. of rate staggering a at daily evolves It not. is Internet the and change to slow are laws that is problem The required. be will law systemefficiently work fairly.and the have to order proper the in them put and parts moving the all take to maker watch Swiss with Conclusion
lots of moving parts. It would take an academic or statesmen on the level of most gifted most of level the on statesmen or academic an take would It parts. moving of lots Until a suitable remedy is enacted, the law will be painfully behind online squatters and squatters online behind painfully be will law the enacted, is remedy suitable a Until na changing constantly the to Due subject complex very a is cybersquatting and Trademarkinfringement and name Domain a cn oe t h ncsay pes o el ih ifcl qetos ht rs from arise that questions difficult with deal to speeds necessary the at move can hat
ture of the internet, constant vigilance and updates to to updates and vigilance constant internet, the of ture 56
odwill and substantial profits. substantial and odwill b ft into fit be o
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