Law

Beware of Extra Fees in UDRP Proceedings

The Uniform Domain Name Dispute Resolution Policy (UDRP) is known as an inexpensive alternative to litigation (and that's true), but some proceedings can end up costing a trademark owner more than it may have expected. There are generally two additional types of expenses that can arise during the course of a UDRP proceeding: (1) extra filing fees for certain aspects of a case filed at the Forum, and (2) an increased filing fee if the domain name registrant wants a three-member panel to decide the case. more

Running the Gamut: Commentary, Criticism, Tarnishment, Disparagement, and Defamation

The two bookends of speaking one's mind are commentary and criticism, which is indisputably acceptable as protected speech, and (in order of abuse) tarnishment and disparagement. Defamation, which is a stage beyond disparagement, is not actionable under the UDRP, although tarnishment and disparagement may be. In ICANN's lexicon, tarnishment is limited in meaning to "acts done with intent to commercially gain" (Second Staff Report, October 24, 2009, footnote 2). more

Canada Considering Right to Repair Legislation Tackling Repair Monopoly Over Brand-Name Devices

Ontario Liberal Member of Provincial Parliament (MPP) Michael Coteau has introduced a bill to enable consumers and independent professionals to repair brand-name computers and phones easily and economically. more

Proving and Rebutting Respondent Lacks Rights or Legitimate Interests in Accused Domain Names

Paragraph 4(a)(ii) of the Uniform Domain Name Dispute Resolution Policy requires complainants to offer evidence conclusive by itself or sufficient from which to infer that respondents lack rights or legitimate interests in the accused domain names. As I've pointed out in earlier essays (here and here) the standard of proof is low and relies on inference, for good reason; beyond the visual proof and what may be obtainable from on- and offline research, respondents control evidence of their choices. more

Is Internet Part of the Curriculum of Universities?

Recently I joined my son, who is in his final high school year, to visit the open day of the newly founded Leiden University College in The Hague. The school focuses on Liberal Arts & Science and offers a broad education on (international) politics, philosophy and economy. The idea is to prepare the next generation internationally oriented public servants and leaders of the future. Among others they have former Dutch Minister of Foreign affairs and Secretary General of NATO Jaap de Hoop Scheffer as a college professor. more

In Which We Consider the Meaning of ‘Authorized’: GIVAUDAN FRAGRANCES CORPORATION v. Krivda

What does authorized access mean? If an employee with authorized access to a computer system goes into that system, downloads company secrets, and hands that information over to the company's competitor, did that alleged misappropriation of company information constitute unauthorized access? This is no small question. If the access is unauthorized, the employee potentially violated the Computer Fraud and Abuse Act (CFAA) (the CFAA contains both criminal and civil causes of action). But courts get uncomfortable here. more

Google Asks U.S. Government to Allow Transparency for Its National Security Request Data

In an open letter published today, Google has asked the U.S. Attorney General and the Federal Bureau of Investigation for more transparency regarding national security request data in light of the NSA data collection controversy. more

Internet Governance and the Universal Declaration of Human Rights, Part 4: Article 13-15

This is Part 4 of a series of articles published (here in CircleID) on the UDHR and human rights in the cyberspaces of the Internet Ecosystem. Here we discuss Articles 13-15 and touch on other topics such as the role of cyber governance, empowered digital citizenship, and whistleblowers. At this point in this series of articles on the UDHR in the digital age, it is useful to pause and remind ourselves of the purpose of this analysis. more

What We Can Learn from URS Decisions (Hint: Not Much)

In addition to being rarely invoked, the Uniform Rapid Suspension System (URS), when utilized, is providing trademark owners and domain name registrants with little guidance about this domain name dispute policy. URS determinations typically offer no insight into the reasons behind an expert's decision, regardless of whether the determination was in favor of the trademark owner (to temporarily suspend the disputed domain name) or the domain name registrant (to allow the registrant to retain the domain name without interruption). more

Outlawing Botnets

The European Commission is apparently considering the promulgation and adoption of a directive that would, at least in part, criminalize botnets. As I understand it, the premise behind adopting such a directive is that since botnets are capable of inflicting "harm" on a large scale, we need to separately criminalize them. I decided to examine the need for and utility of such legislation in this post. more

The Netizen’s Guide to Reboot the Root (Part I)

In the world of ICANN and Internet policy, complexity is manufactured to create an illusion that issues are impenetrably technical such that normal and everyday principles can't apply. This causes a pervasive and entrenched phenomenon of eyes that glaze over at the mere mention of the word "ICANN" -- including those of government regulators and other officials that might otherwise take more of an active interest. more

The Issue of License Proliferation

When I was on the ICANN board, we were dealing with the issue of Internationalized Domain Names (IDNs), an initiative to allow non-latin characters in domain names. Technically, it was difficult and even more difficult was the consensus process to decide exactly how to do it. Many communities like the Chinese and Arabic regions were anxious to get started and were getting very frustrated with the ICANN process around IDNs. ... When I joined the Open Source Initiative board of directors, we were also struggling with a similar, but slightly different problem. more

Court’s Analysis in ACPA Case Is Instructive on How to Plead Bad Faith Domain Name Registration

NameFind is a GoDaddy company that holds registrations of domain names and seeks to make money off of them by placing pay-per-click ads on parked pages found at the domain names. Global Licensing owns the DEJA VU trademark that is used in connection with strip clubs and other adult-related services. When NameFind used the domain name dejavushowgirls.com to set up a page of pay-per-click ads, Global Licensing sued, raising claims under the federal Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. 1125(d). more

Principles, Factors, and Elements that Promote or Undermine the Outcome of UDRP Cases

Panels adjudicating cybersquatting claims, defenses, and rebuttals under the Uniform Domain Name Dispute Resolution Policy (UDRP) expect parties to prove their contentions, and this means having a working understanding of what this entails. There is, first, a set of fundamental rules or principles -- such as pending applications for a mark do not constitute a right, or recognizing unregistered marks as constituting rights... more

Astronomical Increases in Domain Names: Low Constancy of Abusive Registrations

When ICANN implemented the Uniform Domain Name Dispute Resolution Policy (UDRP) in 1999, the number of registered domain names were in the low eight digits. Registered domain names passed the first million in 1997. Today, they are in the first third of nine digits, and continuing to grow. In its newly released publication gTLD Marketplace Health Index (Beta) (July 21, 2016) ICANN offers through a couple dozen metrics a picture of the multiple parts that corporately go into making a healthy marketplace. It's "Beta" because the Health Index is a work in progress. more