• IDENTIFICATION
• LEGAL CLUSTERS
• GEOGRAPHIC CLUSTERS
• TRADE CLUSTERS
• ENVIRONMENT CLUSTERS
• OTHER FACTORS

I. Identification

1. The Issue

The recent publicity regarding the 'illegal' registration of Internet domain names or 'cybersquatting' has given rise to many high profile legal battles. Companies such as E-toys, and TNN (owned by CBS), Governments, companies and even the NFL have all been involved in domain name cases. However, a bulk of thse cases have taken place in the United States, where legal frameworks, even though still somewhat embryonic in this area, generally tend to be more coherent than in many other countries. The issue of domain name registration gives rise to many other issues. The intertwining of a company's brand name and its web address, and the trading of domain names in and of themselves, has made this issue very prominent in international trade discussions. Given the worldwide scope of the internet, the issue epitomizes some of the new and emerging debates addressing Globalization in the new millennium -Globalization in the age of the Internet. The new types of 'property' intellectual or otherwise, that the Internet has brought about, will lead to a re-defining of the concepts of ownership in the 21st Century. This study will examine this issue along with others that are pertinent to the discussion of trade and globalization in the current context. The sections below will briefly describe the issue, and define some of the key terms. Some relevant cases will be presented to help define the scope and breath of the problem. The legal and regulatory frameworks (or lack thereof) under which this debate might fall are also discussed along with discussions on the impact on trade and the global economy. Finally, the ultimate impact of this and similar issues on the cultures of individual nations is also assessed.

2. Description

The World Intellectal Property Organization (WIPO) a United Nations Agency, convened an international process to develop recommendations concerning the intellectual property issues associated with Internet domain names, including dispute resolution. The recommendations resulting from the WIPO Internet Domain Name Process have been made available to a new organization, the Internet Corporation for Assigned Names and Numbers (ICANN), which has been formed to manage the Internet Domain Name System. The issue at hand here is the practice of 'cybersquatting' which is the "bad faith" registration of internet addresses. These bad faith registrations are determined by ascertaining whether a domain registrant has the intention of selling goods and services, diverting customers away from a trademark owner's site or is offering to sell the domain name at a substantial price. (Heckman, via proquest online) While this definition is also somewhat arguable, WIPO arbitration attempts to make decisions on cases where registrants are determined to have no legitimate interests or rights to a domain name. The debate becomes further complicated when the issue of trademarks and legitimate domain name registrations comes into play.

The current policy is to accord a holder of a trademark or service mark the legal right to a domain name. The dispute policy does not envisage scenarios where two or more groups might hold trademarks or service marks in different categories or in different countries. A Trademark is only valid for a certain class of product or service. Therefore, theoretically, a company that has trademarked 'xyz' pizza, and another that trademarks 'xyz' pool supplies, could both have equal and legitimate claim to the site xyz.com. The issue gets further complicates if these two companies are located in different countries and subject to differing trademark or copyright laws. Furthermore, a company could be functioning under a name (let us use xyz as an example once more) and have registered xyz.com. However, if it has not trademarked 'xyz' another company could trademark the name, and thus gain rights to that particular domain. This practice has been referred to as reverse hijacking Therefore, there is an inextricable link between trademarks and domain names. However, simply translating trademark legal precedence onto the issue of domain name selection is at best an imperfect science, and is a contentious issue. Given the rise of the Internet in product marketing, corporate image and of course, e-commerce, domain names are very valuable commodities. Much is invested in a domain name, and publicizing it as a part of a corporation's identity and operations. Therefore, domain names are considered to be property under the rubric of intellectual property (Barry, mids.org/legal/dispute.html). However the attempt to classify domain names under the aegis of trademark law and reallocate domain names as property in disputes, is a gross mis-representation of the legal framework. Therefore, the legal implicationsfor this issue are complex at almost all levels.

The main problem is that this is new territory. The issues and areas of 'gray' in the laws, or indeed, even as to what part of the law the issues fall under are still very unclear. The challenge to ICANN, is that it is not a treaty organization. However it has a somewhat fragile legitimacy (which is being challenged from various quarters, even as this study is being posted) based on the fact that it is granted authority under WIPO, which comes under the aegis of the WTO. However, the supreme authority of the United States (through its key role in ICANN) in this defining issue has almost been brought about by default. The authority of other nations to decide the granting of domain names unique to their countries is also initially 'permitted' through ICANN. Hence, the issues here are very complex and highly intertwined, and the waters are likely to get murkier before they become any clearer.

3. Related Cases

The cyber case does not have many directly related cases in the TED. However, general attributes of the case can be related to several other cases in the database. The initial assumption was that the case was most closely related to the information industry. However, the only case that was found on a search for this category was the weather case. The search was expanded to include the 'Global' region. A separate search was also conducted, using the theory that the Internet domain name was also related to the issue of intellectual property. Hence, a second search was conducted for cases that measured intellectual property.

Global Cases	15
Involving Rights	7
Global Scope	11
Related Cases to note	Teledes Weather

The first search yielded 15 cases. Nearly 50% of the cases (7 of 15) involved rights. Since most of the cases were directly related to various environmental issues it was not surprising that all of the cases had a scope that affected more than one region. 11 of the 15 cases had a global scope. Thus, the lesson that environmental issues are rarely limited to one region, continent or country. This is also true of the cyber case, since any rulings or policies in one country, that differ from the rest of the world, will have an impact of global proportions. For instance, if Libya (simply to use a random example), permitted cyber squatting that violated the regimes of global agreements, the possibility exists for those who wanted to violate laws in the U.S. for instance, to register or park their domains in Libya. Since this issue is so relatively new, and is an on-going process, there is not a lot of precedence for it in the database. While it might appear that using mainly environment related cases to discuss the cyber squatting issue, is somewhat of a stretch, the basic theory applies in both instances.

4. Draft Author: Yohaan H. Demel,April 11, 2000

II. Legal Clusters

5. Discourse and Status: Disagree and In Progress

Several groups and entities stand opposed to the current domain name dispute resolution system. Groups such as ICANN Watch and the Domain Name Rights Coalition(DNRC) are critical of the current operations and scope of ICANN. Accusations range from a lack of transparency to a western bias in its operations. For example, there is no ICANN registration form in Japanese, and many of the other major languages. After much criticism, ICANN seems to be making an attempt to be more responsive to the public, and according to its Iternet web page openly "welcomes the participation of any interested Internet user, business, or organization" in its deliberations. However, as many have pointed out, the costs associated with physically participating in ICANN deliberations, and representing a viewpoint, make it prohibitive except for those from more developed regions, and from corporate interests, thus making the voices that need to be heard most, the least audible.

On the issue of Domain Names, ICANN has adopted an Uniform Dispute Resolution Policy (UDRP) which is somewhat of a de-facto ruling that has been implemented by ICANN, and is also being challenged. Under this policy, only trademark holders can invoke the UDRP. This policy greatly favors trademark holders, and is modelled after trademark law. Trademark law allows companies in different industries to share one trade or service mark. However, on the internet there is currently no differentiation of trade sectors. Thus the rights currently attributed to the trademark holder are generally greater. There have been some instances, in the multitude of domain name cases, where 'legitimate' domain conflicts have arisen, and the smaller or lesser known entities have won out. Of course, the very issue of legitimacy is the issue that is at the heart of the domain rights debate. These mini-case studies highlight two such instances:

TNN Case (from tnn.com): The NETWORK Network Inc. is an international Information Technology (IT) consulting and training company, founded in 1986. The company was incorporated in California on the 30th of November, 1988, and registered the www.tnn.com domain name on January 7, 1994. The Nashville Network, known popularly as TNN, is owned by CBS Inc., which acquired TNN and the TNN service mark (registered by TNN's original ownership in January 1987). Shortly after CBS acquired The Nashville Network, CBS sent 'cease and desist' letters to The NETWORK Network, to stop using the tnn.com domain and website. CBS claimed that the domain name was rightfully theirs and that without the domain they would be at a disadvantage in the highly competitive television industry. A United States District Judge ruled, however, that just because The Nashville Network, missed the opportunity to select the domain name, it did not have sufficient grounds to stake a claim of trademark infringment, since there could hardly be any confusion between IT consulting and country music programming. After the ruling, President of The NETWORK Network, Clyde Hermann, said; "...because they are a big company and very much want something which belongs to us, doesn't necessarily mean they are entitled to it. We are not 'cybersquatters'." The NETWORK Network had been using the TNN trademark and website for nearly half a dozen years, and it had become crucial to its business as well. CBS, has had to back down and The Nashville Network has now found its cyber home at www.country.com. For more information on the country music industry's involvement with international trade issues, see the Country Music Canada case in the TED database.

6. Forum and Scope: WTO/WIPO/ICANN and Multilateral

7. Decision Breadth: Global

8. Legal Standing: Treaty

III. Geographic Clusters