The Future of Domain Name Dispute Resolution: Crafting Practical International Legal Solutions from within the UDRP Framework

By Sharrock, Lisa M. | Duke Law Journal, November 2001 | Go to article overview

The Future of Domain Name Dispute Resolution: Crafting Practical International Legal Solutions from within the UDRP Framework


Sharrock, Lisa M., Duke Law Journal


INTRODUCTION

During the last twenty-five years, the Internet has evolved from a United States government research project into a prominent international medium of communication. (1) Throughout this evolution, the domain name system (DNS) has played a major role in the rise of the Internet's popularity by providing a "human friendly" method of Internet navigation, (2) thus facilitating international commerce and a global exchange of knowledge. The rapid growth of the Internet and the development of the DNS, however, have come with a price--namely, an immense strain on an international trademark law system ill equipped to deal with cyber-controversies. (3) As the United States Court of Appeals for the Second Circuit has opined, applying established trademark law in the Internet context is "somewhat like trying to board a moving bus." (4) This problem is necessarily exacerbated in the international context where, to continue the bus analogy, it is difficult to determine where the bus is located or even whether the bus has a physical presence at all.

Disputes over rights to domain names, which serve a source-identifying function in cyberspace, arise at the heart of this intersection between international trademark law and the Internet. In an effort to reconcile the unique complexities presented by domain name disputes, a host of vehicles have developed by which aggrieved parties may assert their rights. With a few notable exceptions, (5) these remedies may be obtained in one of two forums--traditional litigation (6) or private arbitration under the Uniform Domain Name Dispute Resolution Policy (7) (UDRP) promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN), the nonprofit organization that manages the DNS. (8)

The UDRP, the comparatively fast (9) and inexpensive (10) option, has become the overwhelmingly preferred mechanism for domain name dispute resolution. (11) Despite its widespread use, however, the UDRP is an imperfect system. Specifically, it provides too little guidance to arbitrators, a flaw that has led to inconsistent decisions on several key domain name use issues and, relatedly, concern that some decisions exhibit a bias toward corporate trademark holders. (12) Additionally, to the extent that the UDRP has provided uniform principles of dispute resolution, these principles are inapplicable to a growing segment of domain names; namely, those obtained through registrars not accredited by ICANN or through a country code authority that has not elected to bind its registrants to the UDRP. (13)

In this Note, I discuss these concerns and recommend several measures that will enable ICANN to craft the UDRP into a more effective and uniform international dispute resolution mechanism. I argue that the problem of inconsistent decisions should be addressed by amending the UDRP to add specific examples of conduct that violates the policy, as well as examples of conduct that should be considered explicitly outside its scope. Relatedly, the amendments to the UDRP should attempt to dispel any appearance of pro-corporation bias and should bolster fair use as a justification for registration and use of trademarked domain names. Finally, I conclude that the interests of the Internet community will be best served if all country code registration authorities and non-ICANN accredited providers submit to either the UDRP or an identical dispute resolution policy, and I suggest methods by which ICANN can encourage attainment of this goal.

I. OVERVIEW OF DOMAIN NAME DISPUTES AND REMEDIES

A. Typical Domain Name Disputes

There is an inherent conflict between trademark law and the domain name system. Under trademark law, two or more users of a mark may legally coexist, (14) but in cyberspace multiple users cannot lay claim to a single domain name. To cite a frequently noted example, although United Airlines and United Van Lines both have valid trademark rights in "United" for their respective goods and services, only one party can register united. …

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