My series of posts on the leak of the Trans Pacific Partnership intellectual property chapter has highlighted Canada’s opposition to many U.S. proposals, U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring, copyright term extension, anti-counterfeiting provisions that are inconsistent with Bill C-8, and potential conflict on geographical indications between the TPP and CETA. This post discusses Article QQ.C.12 on domain names. The domain name provision contains two provisions. The first requires each country-code top-level domain to maintain a dispute resolution policy and a WHOIS database. The provision enjoys broad support (presumably most, if not all, countries have a policy similar to the ICANN UDRP), though the U.S. has some concern about the ability to limit WHOIS information based on privacy laws.
The second provision has generated a clear split within the TPP countries as it seems to require countries to create legal remedies to address domain name activity. The proposed provision, which is supported by the U.S., Japan, Mexico, and Vietnam, states:
Each party shall provide adequate and effective remedies against the registration trafficking, or use in any ccTLD, with bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark.
Canada, Australia, New Zealand, Peru, Singapore, Chile, Malaysia, and Brunei are all opposed to the provision. Not only is the provision confusingly worded, but it suggests that governments would be required to adopt legislative solutions to address domain name disputes (if it is merely about transferring domains that are the subject of a bad faith registration, the first provision would address that concern). The Canadian government has resisted legislative intervention into the domain name system, yet this provision might require it to wade into the issue with legal reforms.