Last class I presented on Uniform Domain Name Dispute Resolution. Below is the PowerPoint from the presentation.
In class we discussed both the U.S. response to domain name cyber-squatting, Anti-Cybersquatting Consumer Protection Act (ACPA), and the global reponse to domain name disputes, the Uniform Dispute Resolution Policy (UDRP).
The ACPA grants jurisdiction over infringers or parties to the suit on the sole basis that the party registered the domain name in question with the Verisign registry located in Virgina. The court prefered a narrow interpretation of Schaffer and asserted the minimum requirements test identified in International Shoe was only required for quasi in rem II-type cases. In CNN v. Cnnews.com the dispute concerned “true in rem” jurisdiction and therefore there the court reasoned there was no requirement that the owner or person claiming the res have minimum contacts with the forum state. The court states, “More particularly, in the ACPA in rem action, it is not necessary that the allegedly infringing registrant have minimum contacts with the forum state; it is enough, as here, that the registry is located in the forum.”
Interestingly, the court in GlobalSantaFe Corp v. Globalsantafe.com stated it could ignore a directed ruling of a Korean Court because of the First-In-Time rule. The court reasoned that the proceedings concerning the disputed domain name were not concurrent, the Korean judgment was ordered to prevent the enforcement of the U.S. judgment, and the U.S. judgment supported public policy concerns under U.S. Law. The court stated that the Korean court attempted to block a U.S. judgment six months after it had been ordered. For these reasons, the court stated that the Korean Court’s directed ruling could be ignored.
I found the court’s jurisdiction statements rather concerning. If we review what we’ve learned so far about jurisdictions and cyberspace, we will see that the U.S. court has been inconsistent with what rules it values. Note 7 on page 185 of the textbook explains:
But should “first in time” really matter? What if Park, knowing that Global SantaFe was likely to file an ACPA action in the U.S., had gone into court in South Korea and sought, in advance, a declaratory judgment stating that the registration was permissible under South Korea trademark law? If such a judgment had been issued befor ehte U.S. case was filed, do you think the district court would have abstained from adjudicating the ACPA claim on comity grounds? Should it?
Under such a circumstance, it is doubtful that the U.S. courts would have upheld the South Korean law. The U.S. would have likely found some obscure law to grant it the right to claim jurisidction in this case. Remember the French Supreme Court’s ruling in Yahoo!, Inc. v. La Ligue Contre le Racisme et l’Antisemitisme? The Northern District Court of California was able overule the French Supreme Court’s judgment with regard to Nazi memorbilia for sale on Yahoo’s Auction website. Why didn’t the District Court remember the first in time rule then?
The UDRP allows domain name disputes to brought before an arbitration panel for a resolution. The panelists of the UDRP consider the following information when making a determination of domain dispute resolution:
Paragraph 4(a) – The Complainants must prove the following:
- Disputed domain name (registered by Respondent) is identical or confusingly similar to service marks or trademarks, to which Complainants has rights.
- Respondent has no rights or legitimate interest in domain name.
- Bad faith
In the examples we read in class, there was often a loan dissenter who was able to show that either (2) or (3) was not satisfied for the claim. I prefer the UDRP for two reasons. One, the UDRP does not answer to any one nation, but rather a community of nations. The UDRP is independent from territorial boundaries and jurisdictional lines, which in my opinion makes it more autonomous.
Second, the ACPA forces a party who may have little to no contacts within the forum state to submit itself to the laws of that forum. Even if the defending party contracted with Verisign, a Virginia-based company, this does not mean the defendant ever had any contacts with forum state. Domain names can be purchased online in a simply transaction that costs as little as $10 for the year. Even if the domain name originates from a registry in Virginia, it doesn’t seem just or fair to require a defendant to incur great expense and time to defend his or her actions in the forum state. This requirement and jurisdicitonal claim by the ACPA is overly burdensome and extremely costly for the defendant and therefore unjust.
I prefer an autonomous body governing questions involving domain name dispute resolution to a single country. It allows for a more legitimacy and transparency. The internet is global, it does not effect a single countr yand therefore cannot be governed from from a singular view. For this reason, I think the UDRP is more just and a better take on domain name dispute resolution issues.
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