Internet Domain Names, Trademarks and Free Speech

Internet Domain Names, Trademarks and Free Speech

Elgar Intellectual Property and Global Development series

Jacqueline Lipton

This comprehensive examination of domain name disputes involving personal names and political and cultural issues sheds light on the need to balance trademark policy, free speech and other pressing interests such as privacy and personality rights. The author stresses that because domain names can only be registered to one person at a time, they create problems of scarcity not raised by other forms of digital assets. Also discussed are the kinds of conflicts over domain names that are not effectively addressed by existing regulations, as well as possible regulatory reforms.

Chapter 1: Overview of Domain Name Regulation

Jacqueline Lipton

Subjects: law - academic, intellectual property law, internet and technology law

Extract

REGULATORY OPTIONS A number of options currently exist for those seeking to assert rights in an Internet domain name against a prior registrant. The avenue chosen will largely depend upon the nature of the claim, and the jurisdiction in which the complainant resides. Despite the number of available avenues for dispute resolution, the current system suffers from significant gaps and limitations. Today’s regulations focus on protecting trademarks, and occasionally personal names, against cybersquatters. Cybersquatting involves registering a domain name corresponding with someone else’s name or mark with the intent to sell it for a profit.1 Other conduct that may cause domain name conflicts is not specifically regulated. Examples of non-cybersquatting conflicts involve situations where multiple parties simultaneously hold legitimate trademark interests that correspond with the same domain name,2 or where someone asserts expressive rights to comment on or criticize a trademark holder under a corresponding domain name.3 1 Jonathan Nilsen, Mixing Oil with Water: Resolving the Differences Between Domain Names and Trademark Law, 1 J. High Tech. L. 47, 51 (2002) (‘Cybersquatting has been defined several ways. The most general definition of a cybersquatter is a person who registers a domain name that matches a well-known company for the purpose of ransoming it to that company’.) 2 David Kesmodel, The Domain Game: How People Get Rich from Internet Domain Names 23 (2008) (‘Domain names raised a host of new and perplexing questions in the field of intellectual-property law, especially when it came to trademarks. One problem was that only...

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