SPRING 2008
Cyberlaw
Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu,
dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Questions and Notes on the ICANN Arbitration Regime



1.  Note that the ICANN documents are mis-named.  The "Policy" prescribes the substantive rules and how they work.  Among other things, it defines the "offense" of `"cybersquatting" for purposes of ICANN arbitration.  The "Rules" are really procedural rules, not substantive rules; they prescribe how the arbitration should proceed.

2.  How does the Policy define cybersquatting?  What elements and factors, if any, does its definition have in common with the definition of cybersquatting under Lanham Act 43(a)?  What elements and factors are different?  What relief is available to the cybersquatting plaintiff or complainant under each regime?  On the same facts, would you rather be a plaintiff in a federal cybersquatting case under Lanham Act 43(d) or a complainant in a domain-name arbitration under ICANN's Policy and Rules?  a defendant?  why, and under what circumstances?

3.  Both the Policy and the Rules are required to be incorporated by reference into every contract for registration of a domain name issued by any domain-name registrar, including NSI (which is still in business, although now with competition).  Both documents are also incorporated by reference into the contracts that ICANN has with the various domain-name registrars, from which the registrars derive their authority to register and manage domain names.  Thus the Policy and Rules take effect by virtue of private contract and by virtue of the various registrars' power and contractual obligation to cancel or transfer domain-name registrations in accordance with their terms.  Although the Policy and Rules are matters of neither national nor international law, do they have the same effect?

4.  The Policy and the Rules allow any organization of arbitrators that complies with them to arbitrate domain-name disputes.  One of the private dispute-resolution services that arbitrates domain-name disputes is the World Intellectual Property Organization WIPO (www.wipo.org).  This is the same organization that administers many, but not all, of the multilateral treaties and international agreements regarding intellectual property.  WIPO also has a Website indexing and providing the full text of decisions of arbitrators operating under its supplemental rules.  The index appears at the following Web address:

http://arbiter.wipo.int/domains/index.html

The WIPO Website also helps answer the question "who usually wins domain-name arbitrations?"  Take a look at the Cumulative Case Statistics.

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