RealTime IT News

The Slippery Slope of Domain Disputes

Lately, the World Intellectual Property Organization (WIPO) has been more opinionated than Judge Judy at high noon, delivering blow after blow to domain prospectors panning for Internet gold. Despite the sleazy nature of cyber-squatting on a famous trademark with the intention of selling it to the highest bidder at a later date, my feeling is that WIPO's broad arbitration authority related specifically to "famous and well-known" brands is a dangerous precedent.

Since WIPO's global arbitration service was established last December, more than 700 cases have been filed with the organization. As part of its fast-track procedure, WIPO appoints a neutral arbitrator to decide the case within a month and a half in an effort to sidestep the slow wheels of justice and high-priced lawsuits. WIPO assistant director general Francis Gurry says, "The rising number of alleged cyber-squatting cases shows the growing premium placed on domain names by companies and individuals operating in the wired environment."

That sounds peachy in theory, but already we're starting to see plenty of room for abuse. With more than half of all cases filed from the U.S. alone, nearly 85% of these were found in favor of the complainant. On the surface, things seem to be running smoothly, until you take a look at the growing number of iffy and generic names being contested that point to signs of a slippery slope and prejudicial policies.

Under WIPO's guidelines, owners of certified globally famous trademarks get the upper hand from an evidentiary presumption. In plain English, any person who registers a domain name identical or similar to a widely accepted trademark is already presumed to be a cyber-squatter. Where I live, that's called guilty until proven innocent. And it opens the door to potentially harassing strong-arm tactics from over-funded big business against under-funded individuals.

Rather than saddling the plaintiff with the burden of proof, the trademark holder can show the arbitrator that a domain is "misleadingly similar" or is being used in a way that damages its interests. But those simplistic assertions provide for trademark protections that go beyond what's currently available under intellectual property law online or offline.

The case of Wal-MartCanadaSucks.com raises another concern. Sure, the domain owner didn't have Wal-Mart's best intentions at heart. In fact, he had a prior dispute with the retailing giant over a previous domain. But WIPO saw it fit to hand over the "sucks" domain to Wal-Mart, along with a slew of other domains that contained the same word. What makes the move particularly shameful is that it's widely known that Wal-Mart has had an interest in suppressing criticism from consumers on the Net, having itself already registered "Wal-Mart" and "sucks" in a variety of variations this year and last.

On a side note, BUY.COM is the proud owner of nearly 2,000 domain names ranging from buyelectronics.com to buyplanetickets.com. Off the top of my head, I'd have to say the company would be considered one of the most egregious cyber-squatters, since almost none of the registered domains point to anything. Furthermore, a federal appeals court in San Francisco ruled last year that simply registering a domain name does not establish the owner's right to trademark protection. Who knows - despite spending in the neighborhood of $140,000 in registration fees, the downtrodden dot-com may look ripe for arbitration.

Any questions or comments, love letters or hate mail? As always, feel free to forward them to kblack@internet.com.

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