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E-Business(Updated on Thursdays)



CYBERLAW

Proposed dot-ca dispute resolution method flawed



MICHAEL GEIST

Thursday, April 20, 2000


F
ollowing months of delay, the Canadian Internet Registration Authority is prepared to embark on its most important policy-making exercise: creating a dispute resolution process for Canadian domain names. The Canadian Internet community must take a serious look CIRA's plans, as the policy decisions made today will impact all Canadian Internet users for many years to come.

In a nutshell, CIRA's discussion paper, released this week, calls for a "Canadianized" version of the current international domain name dispute resolution process administered by Internet Corp. for Assigned Names and Numbers. That process has proven to be highly successful, attracting hundreds of cases since its launch late last year.

Much of the plan, which is open for public comment until May 15 and is available on-line at http://www.cira.ca, is not a surprise. The most controversial aspect is the Canadian-only requirements that affect most aspects of the dot-ca process. Anxious to preserve the dot-ca as a Canadian resource operated and managed by Canadians for Canadians, the plan contemplates significant restrictions on who may own dot-ca domains, who may contest the validity of dot-ca domains, and even which court may adjudicate dot-ca disputes.

Who actually qualifies as "Canadian" under the proposed rules is one of the issues currently up for discussion.

Two possibilities include defining a company as Canadian if it is incorporated in Canada, owns or leases office space in Canada, and has a registered Canadian phone number. An alternative scenario would add a further requirement of at least one full-time paid employee in Canada.

The definition of Canadian could prove to be critical, since the plan effectively excludes non-Canadians from owning do-ca domains.

The plan also contemplates excluding non-Canadians from the dispute resolution process. This could create the awkward situation of a non-Canadian holder of a Canadian trademark being unable to challenge a Canadian domain name registration.

On-line auctioneer eBay's foray into Canada, for example, as reported in this newspaper, has been hindered by the previous registration of the dot-ca version of its name to another party. Assuming eBay would not qualify as Canadian under the new rules, it would be unable to contest the registration even if it were the owner of a Canadian eBay trademark.

This approach appears to be completely at odds with the plan's declared goal of "dovetailing accepted common practice for the allocation of domain names with existing Canadian laws for trademarks at both the federal and provincial levels."

The current plan raises several other issues that need discussion. To ensure a Canadian-only resource, the plan suggests that CIRA would only respond to court orders from Canadian courts. This may also prove problematic, as the international dispute resolution process contemplates adjudicating country code domain disputes.

Unlike the ICANN process, which is limited to registered trademarks, the current CIRA plan envisions a much broader scope. In addition to registered trademarks, the plan would allow for the adjucation of disputes involving unregistered trademarks and personal names. This approach may conflict with CIRA's goal of ensuring that domain name registrants have the necessary knowledge and resources to avoid disputes. Unregistered trademarks are by their very nature difficult to identify and the inclusion of personal names may lead to disputes, such as which Mike Harris is entitled to mikeharris.ca (surely there are at least several).

The plan also rejects the idea of having different supplemental rules for different dispute resolution providers, dismissing this approach as "an invitation for problems." However, different approaches between providers would encourage innovation and might lead to more effective competition.

For example, a provider might add a mediation component to the process before the parties enter into "all or nothing" arbitration. In some cases, two parties might effectively share the same domain, as with scrabble.com, proving that domain name disputants are often best served by creative solutions.

With so many key issues at stake, Canadians must seize this opportunity to craft a Canadian domain name policy that establishes a fair balance between the rights of trademark holders and the rights of domain name owners. If we fail to respond to this call for participation, we may find ourselves with a system that satisfies no one.
Michael Geist is a law professor at the University of Ottawa Faculty of Law specializing in Internet and electronic-commerce law. He can be reached at mgeist@uottawa.ca and on the Web at http://www.lawbytes.com.




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