Zbornik Hrvatskog društva za autorsko pravo, 2(2001); str. 87-113.Preuzmite puni tekst članka u PDF formatu
Domain Name Protection
It is now obvious that the Internet is a great business opportunity, providing the faster and easier way of running business on the global level. It is, also, plain clear that the best way for the entrepreneur to truly establish a presence on the net is to stake out its own territory by creating its own domain.
However, the use and growth of the Internet has created legal controversies regarding intellectual property rights, especially trademarks. Domain names, which were originally intended for connecting computers through the Internet, have come to constitute a form of business identifier, due to their facility of use and remembrance. By using trademarks as their domain names, entrepreneurs hope to attract potential customers to their web sites and increase their market visibility. Cybersquatters, exploiting the first come, first saved system of acquiring domain names and, on the one hand, their far sightedness and, on the other hand, indolence and ignorance of entrepreneurs, illegitimately register domain names, which results in consumer fraud and public confusion as to the true source or sponsorship of products and services, impairing electronic commerce and depriving owners of trademarks of substantial revenues and consumer goodwill.
In order to create a stable environment for the further development of electronic commerce and safeguard the interests of owners of intellectual property rights, it became necessary to constitute the dispute resolution system, as efficient, quick and cost-effective way to resolve domain name disputes.
Uniform Dispute Resolution Policy has been, since December 1999, the basis for settling conflicts relating to trademarks on the Internet. It establishes a uniform and mandatory administrative dispute-resolution system to address cases of bad faith and abusive registrations, also known as “cybersquatting”. Using this system, panels of one or three experts, appointed by the dispute resolution service provider, apply streamlined, quick and cost-effective procedures to review claims and eliminate cases of clear abuse of trademark holder’s rights, leaving the more complex cases to courts.
The procedure, which is handled in large part online, is designatedto take less than 45 days, and is expected to cost about $1000 in fees to be paid to the dispute resolution service provider. Parties to such disputes will also be able to go to court to resolve their dispute or to contest the outcome of the procedure.
According to Section 4(a) of the aforementioned policy, the claim can be filed, provided that:
- someone is using a domain name that is identical or confusingly similar to the trademark or service mark
- domain name holder has no legitimate interest in the domain name
- domain name has been registered and is being used in bad faith
Notwithstanding the above mentioned, there is a standpoint that the policy gives trademark holders more rights than they currently have under trademark law. Namely, trademark owners can suppress the speech of anyone who uses a trademarked word as a domain name, even if a domain and its holder are in a different category of commerce, or not in commerce at all. Under trademark law more than one entity can hold a trademark on the same word, name, or symbol provided that it is used in completely different business categories. Failure to provide for multiple uses of the same trademarked character string in a domain name has resulted in “sealing off” that character string to those, in other area of commerce, who would otherwise legitimately be able to use it, leaving others no opinion but to register domain names that are less desirable.
The dispute resolution system in issue, in spite of all criticism and inadequacies, is the only practicable present way of ensuring legal safety and dependability in e-market.