Edited by Paul Torremans
Chapter 16: Online dispute resolution: The phenomenon of the UDRP
The intangible nature of intellectual property (‘IP’) makes it easily moved across national boundaries, with the consequence that infringement – and, hence, enforcement – of IP rights not uncommonly has a cross-border element. The opportunities for cross-border infringement of IP rights were significantly enhanced by the development of the Internet, and in particular by the adoption of the World Wide Web (the ‘Web’) as the mechanism of choice for the commercial dissemination of intangible subject matters. With the advent of the Web, copyright-protected creative material, trademark-protected badges of origin, and (to a lesser extent) patent-protected inventions could be made available to consumers across borders with ease and at relatively low cost. Of the various IP subject matters, trademarks are particularly susceptible to infringement on the Web. This is because the embodiment of a trademark is, typically, less content-rich than is the embodiment of a copyright-protected creative material and much less content-rich than the embodiment of a patent-protected invention. Thus, a trademark is the easiest of IP subject matters to disseminate electronically. Moreover, because one common embodiment of a trademark is as a simple text string, a trademark commonly can be incorporated into a domain name. This gives rise to the potential for trademark infringement by the registration and use of a domain name that is the same or confusingly similar to a trademark.
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