Domain Name Dispute Resolution—Focused on Uniform Domain Name Dispute Resolution Policy
Date Issued
2012
Date
2012
Author(s)
Wang, Yi-Hua
Abstract
As an alternative dispute resolution mechanism, UDRP is a fast and simple way to combat cyber-squatters. It has been carried out for over ten years, achieving remarkable success. The cases being long-term cumulated have established principles, such as WIPO Overview 2.0. WIPO Overview 2.0 is quite a good model, deserving our domain name dispute resolution process notice.
At first, the thesis introduces basic conception of domain name in the second chapter. Domain name is a private right, and not rights in rem. The following is different types of cybersquatting, such as cyber-squatters ,cyber-parasites and cyber-pirates. We should get to know UDRP, the way dealing with cyber-squatters internationally. Though data analysis and comparing to arbitration, we may understand characteristics of the UDRP. Then this thesis introduces the procedure elements, pointing out that Taiwan''s case referred to the principle of party-presentation of its characteristics.
The third chapter focuses on the UDRP’s first substantial element: the basement of complaint and the likelihood of confusion. In early stage, UDRP limited the scope to trademark and service mark. However, it gradually towards to trade dress. Considering whether it has the ability to distinguish product and service, UDRP no longer limited to narrow definition of trademarks. Therefore, personal name is capable of filing complaint. It seems a dramatic gap between UDRP and our policy, but in fact formed consensus. In addition, since the likelihood of confusion can be reviewed by the following elements, it is sufficient to compare the similarity between domain name and trade dress.
In our country, only few case types discuss UDRP’s second substantial element: no rights or legitimate interest. For example, Distribution or resale, parody or criticism, fans site, the distinction between tarnishment and comments. The UDRP insights serve as future reference. Some issues involved in the initial interest confusion. Whether it is suitable for domain name dispute resolution, the author held a negative view. Overall, from concrete to abstract, can be divided into individual specific rights, such as name rights, trademark rights; abstract personal interests, such as freedom of speech, freedom of general behavior; abstract public good. A comprehensive judgment is made , combining two elements: commercial and public good. Depends on the content of site or the use condition, one may figure out who is more competent to use domain name efficiently.
The third UDRP substantial element : registered /use in bad faith, it should not be limited to the illustrative case. In stead , testing all the facts and circumstances. When comparing UDRP and our policy ,a number of difference can be found. Our policy is more flexible, bad faith registered or bad faith use constitutes. It is easy to include passive holding.In contrast, it is more difficult to form a consensus. To illustrate, simple registration form obstructed, the definition of out-of-the-pocked, the interpretation of a pattern of conduct, are all controversial cases in our country.
Finally, the thesis points out the newly emerging issues of the domain name. First, the search engine does not make the domain name dispute disappear. The reason may be : difference between the target, the cost, and the domain name will affect the search results, even to avoid a number of search engine defects. Second, although some opposition questioned the new gTLDs, it was passed in June 2011. With several related rights protection mechanisms, such as the objection procedure, the trademarks clearing house, Uniform Rapid Suspension system, and post-delegation dispute resolution mechanisms to protect rights holders. Furthermore, the problem of post-domain name infringement arises in social network sites. Although there is the internal settlement mechanism, but it is inefficient. Unfortunately, due to the definition of the domain name, UDRP cannot settle the issue, which should be reviewed.
Subjects
Domain name dispute
cybersquatter
ADR
New gTLDs
SDGs
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
index.html
Size
23.27 KB
Format
HTML
Checksum
(MD5):4dd1d04718a7dce7fee5188e64ec3cb7