The ICANN Uniform Dispute Resolution Policy
The introduction of the UDRP to deal with domain name disputes has provided a valuable alternative to the courts. However possible evidence of inconsistency, bias and procedural errors will only undermine this reputation. In order to assess the merits of ICANN’s UDRP procedure, these claims must be carefully investigated. Before, I dive straight into the substantive provisions of ICANN’s UDRP; a little scene setting is in order. The Internet as we know it today is a still relatively new concept, major widespread public use has only been evident in the last six years.
However, its origin dates back over 30 years, the Internet started life as primarily a military tool. Foreseeing communication problems in the event of war, the United States Department of Defence and the Massachusetts Institute of Technology created the ARPANET network. The essential idea of this technology was in the method of communication or ‘routing’ of information. Instead of direct communication between two stations, the Internet essentially negotiates a web of communication lines. Should one line of communication be broken, the system would automatically re-route to avoid the broken line.
Today, this is done to the extent that it is very unlikely that data would take the same path twice. As we might imagine from a military oriented system, the use of the Internet was not designed with wide-scale public use in mind. And its usage was generally restricted to academics and the military for many years. The major catalyst for the Internet did not arrive until the early 1990’s, this was in the form of the World Wide Web (WWW). This radical concept essentially brought ease of use, the Internet’s only significant remaining problem following on from previous improvements in data transfer and reliability1.
Prior to the WWW, navigation of the Internet was via use of complicated commands, and was generally text-based. The WWW incorporated a new method of communication, hypertext transfer protocol (HTTP). HTTP was a breakthrough in navigation and appearance. A user could now navigate the Internet through the use of embedded links within ‘web pages’, which were more graphically based, appealing infinitely more to the general public. A useful comparison would be to examine the effect of Microsoft Windows on the PC market, following previous, bland DOS based programs.
To start, the general public and corporations did not really see the potential of the Internet. Like the invention of the Television set, it was largely seen as a passing fad. However it didn’t take too long before the ‘potential’ of the Internet was apparent to everyone. The Internet hadn’t quite developed into the sophisticated e-commerce, entertainment and information platform that we know today, but scared of ‘missing the boat’ every corporation wanted at least some presence on the Internet. Leading to an explosion in domain registrations.
Indeed some companies had ‘missed the boat’, finding that their choice of domain name had already been registered by someone else. This led to the first of the domain name disputes. So what is a domain name? Why do they cause such problems? A domain name is essentially an abbreviation or shortcut to an Internet address. Every server, providing data on the Internet has a unique address to allow other computers to locate it. This is in the format of a long string of digits (dotted decimal notation) known as an IP address.
A typical IP address might look something like this; 150. 237. 176. 8 This is a format that it not easy to remember or communicate to others. It is also not permanent, as an IP address may need to be changed. To combat this, we use the Domain Name Service (DNS). This provides us with an easily recognisable domain name. For example, ‘hull. ac. uk’ is the domain name for The University of Hull. When a user on the Internet enters a domain name, the computer connects to a DNS server.
The Domain Name Service then translates or resolves the domain name into its unique IP address, allowing the individual computer to be found on the Internet. hull. ac. uk = 150. 237. 176. 8 Just as the IP address is unique, so is the domain name. It can only point to one IP address, therefore can only be used by one company or one individual. A domain name incorporates several different elements. For example, www. acme. com is made up from a second level domain (SLD) being ‘acme’ and a generic top level domain (gTLD) being ‘. com’. TLD’s are identifiers that do not relate to any particular country, other examples of these are . ‘. net’ or ‘. org’.
Instead of a ‘. com’, a company may also use a national top level domain (nTLD) such as ‘. uk’ There are many other national top level domains (nTLD) from ‘. uk’ for the United Kingdom through to ‘. zw’ for Zimbabwe Every domain name is unique, however ‘acme’ could be registered as ‘acme. net’ or ‘acme. co. uk’ or ‘acme. zw’ etc. For the Internet, a domain name is as important as a brand name or trademark, the more concise the better.
Therefore it would be preferable by many companies to have a SLD like ‘acme. com’ not ‘acme-computers-ltd. com’. Furthermore, many companies would prefer a ‘. com’ gTLD which is considered as the most prestigious commercial TLD. Due to the globalisation of the Internet, and the uniqueness of the domain name, ‘acme’ may be desirable by many individuals, however since there is only one ‘acme. com’ disputes will inevitably arise. The problem with such disputes was that traditionally, there was no need for a coherent dispute resolution service.
The commercial use of the Internet has only being evident since 19952, before that time, although it was possible to register domain names, they were not seen as having any real commercial use. Since this was the case, there were no real domain name disputes, save perhaps Quittner v McDonalds in 1994. Quittner, a journalist for ‘wired’ magazine registered the domain ‘mcdonalds. com’ having learnt that the company has made no attempts to secure the domain name for themselves, perhaps becoming the Internet’s first cybersquatter.
He had realised how easy it was to register a domain name, and how their commercial value could be extraordinarily high, and obtained very cheaply. Following some banter between McDonalds and Quittner through the magazine, the case was settled amicably between the parties. McDonalds choosing the cheaper option of donating $3500 to a school rather than litigation. This case served as an example to show how the value of domain names was being underestimated, and how some dispute resolution mechanism would be necessary with the ease of registration and potential for ‘cybersquatting’.
As a result of this problem, Network Solutions, Inc who enjoyed a monopoly of control over the DNS for gTLD’s up to 1999 established a dispute resolution policy. Policy was established on an ad hoc basic, ‘[running] the system more or less as they wished’3. They imposed a unilateral procedure, allowing any domain name to be suspended purely on the basis of a match to a pre-existing trademark, regardless of any bad faith or illegitimate use. This concept had a number of procedural drawbacks.
First of all, it only recognised domain names that were identical to the existing trademark. Therefore, the trademark of ‘McDonald’s’ would not be applied by NSI to evict cybersquatters who held ‘macdonalds. com’ or ‘mcdonlds. com’ Secondly it did not prevent ‘reverse domain name hijacking’, where by Intellectual Property holders use their commercial influence to obtain domain names from legitimate domain holders. This policy was not effective.
Legitimate domain holders could not protect their interests, as generally couldn’t afford to defend themselves in litigation. Furthermore, it was so easy and cheap for ‘cybersquatters’ to register domain names, that such behaviour was widespread. Many companies did not have the resources to challenge every instance. The ‘free for all’, informal philosophy of the Internet was no longer appropriate given the huge commercial value. Something less ad hoc and more coherent was required. ICANN and it’s UDRP was hailed as the answer.
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