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Squatters and pirates ejected from cyberspace

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Cybersquatters are facing defeat as a result of the Uniform Dispute Resolution Policy of the Internet Corporation for Assigned Names and Numbers. This was the conclusion to be drawn last week at the inaugural meeting of Cyberbe@t, a series of events for the intellectual property community arranged in London by Virtual Internet Net Searchers. Jonathan Cohen, a Canadian intellectual property lawyer and member of the ICANN board, drew attention to a number of problems that still need to be resolved. Each registrar is now supposed to operate its own WHOIS database, but some of the country Top Level Domains databases cannot be accessed for data protection reasons (or perhaps incompetence in a few cases), and to make matters worse, there is no uniformity for fields and format in WHOIS databases. Unfortunately perhaps, ccTLDs are not under the ICANN umbrella so far as their management is concerned, and so the UDRP cannot be imposed. Cyberpirates Cohen outlined some interesting problems in trademark law: identical trademarks can exist for different products or services, but this is not possible with domain names. A further problem concerns the territorial nature of trademarks -- they are limited to the country or countries of registration, whereas TLDs are not. Cohen also distinguishes between cybersquatting and cyberpiracy, where the intention in the latter case is to be abusive. Up to about ten new TLDs will probably be agreed by the ICANN board, Cohen expected. One of the respondents to the call for proposals was Ralph Nader's Essential Information/Consumer Project on Technology outfit. Their suggestions include: .union for labour and trades unions; .customers; .complaints; .sucks (but not for ownership by the organisation that sucks); .isnotfair (for civil rights groups); and .shareholders. Other suggestions have included .eu, .bus, .web, .store and .sex. It is expected that the successful registrars for the new TLDs will be non-profit, broadly-based organisations, but a return to monopoly-profits organisations is not totally excluded. ICANN will post the proposals publicly for comment. Moves to get a basic list of "famous trademarks" that are frequently targeted by cybersquatters have not yet been successful, although work continues. The hope is to stop registration of domain names similar to such famous trademarks. It has been a long road to get ICANN established and the UDRP working, Cohen told us. The objectors were generally from one of three groups: companies that had a vested interest in a particular outcome; objectors who claimed public policy motivations for their opposition; and dissidents who were known in some cases to have received financial support for attendance at meetings from NSI, as part of its effort to keep its monopoly. When questioned about the "constituencies" they claimed to represent, and the source of their funding to attend meetings, they were not forthcoming. It is now believed that there are new policies in place at NSI following the appointment of Roger Cochetti, formerly in charge of electronic commerce regulation at IBM, as senior VP and chief policy officer in February. Arbitrators a-gogo There are three dispute resolution organisations offering their services: the World Intellectual Property Organisation (which has more than 100 available panellists and is handling 45 per cent of cases so far); the National Arbitration Forum (based in Minneapolis, handling 46 per cent); and Disputes.org/eResolution Consortium, (based in Montreal, and processing 9 per cent of cases). The only possible resolution by a panel is a decision as to whether there should or should not be a transfer of the domain name. If a transfer should take place, the registrar is instructed accordingly. Eric Wilbers, a senior WIPO legal officer, noted that the average length of time to resolve a case is 35 days, although with the increase in arbitrations, this may stretch to 40 to 45 days, he suggested. Around 95 per cent of WIPO cases so far are being resolved by a one-person panel, with a fee of $1,000, although there is an option for a three-person panel with a fee of $2,500. This compares very favourably with the likely legal fees to accomplish the same objective through the courts -- quite apart from the considerable length of time this is likely to take, with 2.5 years being mentioned as typical. So far, in 35 cases, 80 per cent had been won by the trademark holder. The mediation process is not mandatory, since either side can opt to go to court instead. in around 80 per cent of cases, there has been no reply from the alleged cybersquatter. In quite a few cases, false registration data has evidently been filed, so lessening the chance of some cybersquatters knowing that they have been challenged. It is not necessary for a trademark to be identical with the domain name: it only needs to be "confusingly similar" for a submission through the UDRP. A current problem is in the use of nicknames, or where the names of people have been legally changed - for example in the case of a certain Mr Oxford University, in Australia. Another problem is the apparent registration of the names of more than a hundred mostly British authors as a TLD, such as martinamis.com and julianbarnes.com: these are being offered for sale. There are also some intellectual property issues with hyperlinking, with three types being recognised: where the URL is changed; where image links are used to bring in an image without changing the URL; and framing, whereby pages from another site are viewed in a window, again without the URL being unchanged. Metatagging can also be a problem, especially if the metatags contains a famous trademark, so that a hit is registered withsearch engines when the searcher wants just the famous name. It is heartening to see a straightforward and successful resolution to theproblem of cybersquatter abuse of at least TLDs. Although most domain registrars are collaborating, it is probable that there will be some roguedomains, but such domains of convenience would soon be recognised for what they are. ®

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