Trade Marks on the Internet copyright 1996-2003; last updated August 14, 2003




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DOMAIN NAME REGISTRIES


The rules and process for registering a domain name have changed over the years. The rules of each registry are different. There are different registries for each different TLD. For example, the .com in jurisdiction.com indicates that the domain name is registered in the .com TLD registry. Originally, the routing system recognized seven TLDs (namely, .com, .net, .edu, .gov, .org, .mil and .int). The original TLDs are referred to a “generic” or gTLDs. The .com TLD has been the most popular domain for businesses wanting a web site. There are seven relatively new TLDs which are discussed below.

In addition, every country in the world has been assigned a two letter top level domain. Canada's is ca. The 249 country code Top Level Domains (“ccTLDs”) are administered on a country-by-country basis. Information on the registration requirements in for many of the ccTLDs is available online.


History


The rules of domain name registration have evolved with the Internet. Initially, the National Science Foundation had responsibility for giving out domain names. On December 31, 1992, the National Science Foundation entered into an agreement with Network Solutions Inc. (“NSI”), a public company, under which NSI obtained exclusive responsibility for the registration of domain names in the .com, .net and .org registries. These three registries were called the commercial TLDs.

Until 1998, NSI was the sole registrar and administrator of the commercial TLDs. Early on, when NSI received a domain name application, it merely checked to make sure that the proposed domain name was not already registered. NSI distributed domain names strictly on a first come, first serve basis. The problem with this system rapidly became apparent. In one famous example, the domain name mcdonalds.com was registered to a computer savvy journalist.12


Dispute Resolution Policies


Beginning July 28, 1995, NSI began to promulgate dispute resolution policies that modified the first come, first serve assignment of domain names to recognize the rights of registered trade mark owners. However, because domain names are not always used as trade marks, a new set of rules had to be developed to resolve competing claims to domain names.

Under NSI's Dispute Resolution Policy (Rev. 3, effective February 25, 1998), a trade mark owner could challenge a domain name registration by providing evidence to NSI that the challenger had a registered trade mark. If that trade mark registration predated the activation of the domain name, NSI requested the domain name holder to provide evidence that it also had a registered trade mark for the name. Without this evidence, or if the domain name's activation did not predate the challenger's trade mark registration, NSI placed the domain name on hold (making it unavailable to either party) pending resolution of the dispute. This was analogous to an interlocutory injunction of indefinite term. Otherwise, the domain name holder could continue using the domain name until a court or arbitrator determined that the challenger's trade mark rights were infringed. Once such a determination was made, NSI would comply with the arbitration or court order. The Canada Post decision discussed below is a case in which a Canadian Federal Court order was used as authority for NSI to transfer a domain name.

Companies began suing NSI to avoid having their domain name put on hold. For example, Roadrunner Computer Systems Inc. ("RCS") sued NSI for its decision to place the domain name roadrunner.com on hold.13 The name was put on hold after Warner's Brothers Inc. pointed out that it owned a trade mark registration for ROAD RUNNER.  RCS had registered ROADRUNNER as a trade mark in Tunisia and argued that NSI had breached an implied promise not to arbitrarily withdraw domain names and had committed the tort of intentional interference with contractual relations. The case settled and RCS won the right to use http://www.roadrunner.com/ and http://www.roadrunner.net/. (The domain name is now owned by Time Warner Entertainment Company, L.P)


  • The NSI domain name dispute resolution policy was criticized for

  • not recognizing common law trade mark rights;

  • not recognizing claims based on non-identical but confusing trade marks;

  • requiring expensive litigation and a court order if a domain name owner refused to transfer a domain name14

ICANN’s Uniform Domain Name Dispute Resolution Policy was developed to correct some of the deficiencies in NSI’s approach to domain name disputes.

ICANN


Dissatisfaction with the domain name registration process led the U.S. Department of Commerce to initiate an international consultative process that culminated in the creation of ICANN. ICANN is a non-profit corporation formed to assume responsibility for IP address space allocation, domain name system management and root server system management. ICANN has opened the domain name registration market to competition, but NSI, now VeriSign, is still intimately involved. In September, 1999, NSI, ICANN and the U.S. Department of Commerce entered into an agreement whereby NSI would continue to manage the existing commercial TLDs until November 10, 2003 when ICANN will select a successor registry.  Since NSI/VeriSign no longer has a monopoly on domain name registration services, applicants can now register their .com, .net and .org domain names with any one of the ICANN accredited registrars online.

Aside from opening competition in domain name registration services, one of ICANN's major initiatives was the implementation of a Uniform Dispute Resolution Policy (“UDRP”) to resolve disputes between competing domain name claimants. The UDRP is discussed below.


The Relatively New TLDs


For several years, there were proposals to introduce new commercial TLDs. After considering numerous bids (and pocketing the attached $50,000 application/consideration fee), ICANN decided on November 16, 2000 to introduce seven new TLDs. They are:

Domain

Indicia of


.aero

air-transport industry
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