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Debating Domain Names

It is not often that Members of Parliament engage in debates on domain name policies so yesterday’s extended debate in the House of Commons is worth noting.

The impetus for the debate is the registration by an opponent of same sex marriage legislation of domain names bearing the name of MPs who favour the legislation. The sites are pretty deceptive. For example, the Don Boudria site looks like it could be the MP’s official site with only a disclaimer that it is not the official site.

The legal response to this issue is pretty complex. CIRA’s domain name dispute resolution policy is expressly designed to protect good faith criticism sites. That provision was adopted out of concern for the impact under the ICANN UDRP which has seen many legitimate criticism sites transferred under the questionable claims of cybersquatting.

The legal response to this issue is pretty complex. CIRA’s domain name dispute resolution policy is expressly designed to protect good faith criticism sites. That provision was adopted out of concern for the impact under the ICANN UDRP which has seen many legitimate criticism sites transferred under the questionable claims of cybersquatting.

These sites seem to me to be a tough call. There is no question that this is criticism and that there has been no attempt to profit from the domains (the "classical" definition of cybersquatting). However, whether the deceptions on the site allow it to remain within the realm of "good faith" is a difficult issue for which I could envision arguments on both sides. Note that even if they do not qualify as a good faith criticism sites, it is still questionable whether the MPs enjoy trademark rights in their names sufficient to even launch a claim under the CDRP.

I don’t think there is any doubt that the MPs could launch legal suits grounded in tort against the domain owner as a claim for misrepresentation might succeed. That is different from a trademark claim or a CDRP action, however, and a fairly lengthy process.

I expect that there may be pressure in the coming days on CIRA to find a way to deal with the issue. Given the complexity of the issue, I think this provides a good illustration for why CIRA should not be engaged in debating the merits or legitimacy of certain domain name registrations. As the saying goes, hard cases make for bad law and this is a hard case.

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