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Frontier Compliance: A Communication System Emerging in Cyberspace
Unformatted Document Text:  12 the registrars upon registration. Without agreeing to follow the UDRP proceedings and decisions when a trademark holder files a complaint in one of the UDRP service providers, one cannot register a domain name in .aero, .biz, .com, .coop, .info, .museum, .name, .net, and .org top-level domains. It is a take-it, or leave-it approach to the registrants. Only trade or service mark holders may initiate UDRP proceedings, and the domain name registrants must follow the proceedings. The remedies available to a complainant are limited to requiring the cancellation of the domain name or the transfer of the domain name to the complainant. No other remedies such as monetary compensations are not available. The UDRP is purported to be a less expensive mechanism of dispute resolution than court proceedings that can be dealt with online, without the complex issues of jurisdiction, choice of law, and enforcement that often make international dispute difficult to be handled in courts. But examining the basic framework of the UDRP system suggests that the UDRP allows trade or service mark holders an easier, less expensive, and more effective method to acquire domain names that are registered by others. Next is an analysis of substantive rules of the UDRP. Substantive Rules. It is important to note that the UDRP does not apply to all kinds of domain name disputes, but to specific disputes that involve clearly abusive domain name registration and use. In order to seek UDRP remedies, the complainant must prove each of the following three elements: (1) the respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (2) the respondent has no rights or legitimate interests in respect of the domain name; and (3) the respondent’s domain name has been registered and is being used in bad faith. 5 I will examine how these three elements are applied to specific disputes. It is relatively less common that the first element is in dispute. There, however, is some inconsistency regarding which domain names are determined to be similar to a trademark or a service mark. When a hyphen is added or omitted, words are added, or spellings are changed, the domain names are usually considered to be the same or similar to the trademark. In case of the dispute regarding walmartsucks.com, the relevant trademark is Wal-Mart, owned by Wal-Mart Stores, Inc. Hyphen is omitted and the word “sucks” is added, but the panel decided that the domain name is confusingly similar to the trademark. The tendency that adding generic words do not make the domain names to be considered not similar to the trademark is troublesome, in that it 4 See http:// www.icann.org/udrp/ . 5 UDRP Policy 4. a. Applicable Disputes

Authors: Woo, Jisuk.
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12
the registrars upon registration. Without agreeing to follow the UDRP proceedings and
decisions when a trademark holder files a complaint in one of the UDRP service
providers, one cannot register a domain name
in .aero, .biz, .com, .coop, .info, .museum, .name, .net, and .org top-level domains. It is
a take-it, or leave-it approach to the registrants.
Only trade or service mark holders may initiate UDRP proceedings, and the
domain name registrants must follow the proceedings. The remedies available to a
complainant are limited to requiring the cancellation of the domain name or the transfer
of the domain name to the complainant. No other remedies such as monetary
compensations are not available. The UDRP is purported to be a less expensive
mechanism of dispute resolution than court proceedings that can be dealt with online,
without the complex issues of jurisdiction, choice of law, and enforcement that often
make international dispute difficult to be handled in courts. But examining the basic
framework of the UDRP system suggests that the UDRP allows trade or service mark
holders an easier, less expensive, and more effective method to acquire domain names
that are registered by others. Next is an analysis of substantive rules of the UDRP.
Substantive Rules. It is important to note that the UDRP does not apply to all
kinds of domain name disputes, but to specific disputes that involve clearly abusive
domain name registration and use. In order to seek UDRP remedies, the complainant
must prove each of the following three elements: (1) the respondent’s domain name is
identical or confusingly similar to a trademark or service mark in which the complainant
has rights; (2) the respondent has no rights or legitimate interests in respect of the
domain name; and (3) the respondent’s domain name has been registered and is being
used in bad faith.
5
I will examine how these three elements are applied to specific
disputes.
It is relatively less common that the first element is in dispute. There, however,
is some inconsistency regarding which domain names are determined to be similar to a
trademark or a service mark. When a hyphen is added or omitted, words are added, or
spellings are changed, the domain names are usually considered to be the same or
similar to the trademark. In case of the dispute regarding walmartsucks.com, the
relevant trademark is Wal-Mart, owned by Wal-Mart Stores, Inc. Hyphen is omitted and
the word “sucks” is added, but the panel decided that the domain name is confusingly
similar to the trademark. The tendency that adding generic words do not make the
domain names to be considered not similar to the trademark is troublesome, in that it
4
See http://
www.icann.org/udrp/
.
5
UDRP Policy 4. a. Applicable Disputes


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