The universe of brands was strongly impacted for soon 15 years by the development of the Internet, through the emergence of domain names. In the international scale, a principle governs the registration of domain names: it is about the rule of the “first come, first served”. A domain name is attributed to the one who makes the first the request, without taking into account the anteriority of the possible trademark registration. Definition: Cybersquatting
The cybersquatting consists in reserving a domain name corresponding to brand or a person with the aim of reselling it, like blackmail, or abusing it, for example by creating a rerouting towards the site of a competitor. Some people even became specialists, sometimes having thousand domain names ready to be resold or used as a weapon during election campaigns. Internet domain name In the world of the IT communication, every computer is identified by a number of four numbers separated by a point.
This number is called an address of Internet protocol, more familiarly the IP address. It is by this number that communicates computers. Memorizing an IP number is repulsive. That is why the domain name was created. It is easier to remember “www. yahoo. com”, “www. toile. qc. ca” or “www. nomade. fr” than their respective IP address “204. 71. 200. 245”, “216. 218. 0. 108” and “213. 36. 119. 66”. By going through these directories, we can notice the diversity of domain names. Whois software It allows making researches on the databases of domain names ending by . r or . re as well as . tf. yt. pm and . wf. Examples of Cybersquatting French election At the approach of the presidential election, the cybersquatting develops. Morin2012. fr sends back towards a blog without visible link and francoisfillon. fr towards the site of a website dedicated to the campaign of François Hollande. The motivations of these Internet users are varied: bothering the digital communications strategy of the candidate, make the buzz on its personal website or sometimes try to exchange the transfer of the domain name.
Two days after his entrance to campaign, Hervé Morin has no official site and the Internet users who write “Morin on 2012” in a search engine meet on a sarcastic blog which discusses subject so varied as “the big hope of 2012” or still “the word of the drunkard”. How to fight against Cybersquatting First principle: to privilege the prevention. The company has to allocate sufficient resources to the warehouse of the domain names corresponding to its social name, but also, in an intuitive way, to the various possible declensions.
For instance, the “example” company will give evidence of course www. example. com, but also www. e-example. com or www. example-online. com, etc. The budget necessary for this indispensable initiative will be function of the importance which the company grants to the protection of its image on the Internet (nature of the activity, the weak or strong degree of internationalization of the activity, etc. ). Second principle: the negotiation.
In the hypothesis where the domain name of the company was monopolized already deceitfully, it is advisable, before any legal or extra-judicial action, to deal with the cyber squatter to make sure of its intentions. This contacting has to dress a formal character and will constitute a formal demand of restoration of the domain name. This phase of negotiations can know the more or less happy end according to the determination of the pirate. The company can also deal with a third mediator who will propose a set of negotiated solutions to the parties. The third principle: extra-legal instruments.
The guiding principles governing the uniform regulation of the disputes relative to domain names, adopted in August, 1999 by the ICANN (Internet Corporation for Assigned Names and Numbers), is now applicable to the business of cybersquatting for the generic domain names of first level (. com. net. org). They do not apply to the other generic domain names (. edu. gov. mil. int). Initially, they did not have authority to apply to the geographical domain names of first level (. be. fr, etc. ). The specialists expect the next application of the principles of the ICANN in the geographical domain names of first level.
To be applicable, they necessarily have to appear in the contract of recording of the domain name subjected to the procedure. This uniform and compulsory administrative procedure of dispute settlement concerns only the excessive recordings made. The fourth principle: obtain the recognition of its rights in justice. Most of the industrialized states are equipped with a legal arsenal appropriated for the e-commerce aiming in particular at practices such as the cybersquatting (recent adoption of the Cybersquatting Act in the USA).
In Belgium, the first judicial decisions to punish the practices of cybersquatting date January, 1997. Since then, the jurisprudence is constant on this theme. The affair Tractebel: since the ruling returned by “the Court of Appeal of Brussels” on April 1st, 1998, in that case of cybersquatting, it is possible to call upon the law on the practices of the trade for all the commercial practices occurring on the Belgian territory, even if they take their source(spring) abroad.
Some legal weapons through the world Anti-Cybersquatting Consumer Protection Act (ACPA) It’s “a law of United States of America adopted unanimously by the Senate, signed by President Bill Clinton on November 29th, 1999, integrated into Lanham Act of 1946 (Law governing the right of the brands for the United States)” This text prohibits the excessive intake of marks consisting of domain names and increases the reliability of the Internet.
Whoever registered of bad faith a domain name corresponding to a mark (with a close relation) with the dishonest intention to benefit from it (resale of the domain name, the misappropriation of clientele, affected the brand) can be liable to penalty going $to 100. 000 US (and transfer of the litigious domain names as well as possible damages). Truth In Domain Names Act (TDNA) It’s “a law of United States of America adopted on April 30th, 2003”.
This Act is attached, provides, inter alia, the fact that recalls a domain name to a content access to content based on the expectation of the visitor. The TDNA creates for it the offence of ” Misleading Domain Names one the Internet ” which is punished for a punishment(effort) which can go to four years of detention for the one who will deliberately have published on the Internet a particular contents the character of which is unexpected considering the used domain name Fraudulent Online Identity Sanctions Act (FOISA) Laws of the United States of America, adopted in May 2005 and in Lanham Act of 1946 (Law on Trademarks in the U. S. )”. The law applies to false information online and especially those on the “registrant” (one who buys a domain name) in the Whois databases. A new type of cybersquatting: the typosquatting The brand consists in recording, not itself but all the possible variants which can result errors of typing or spelling the names of the marks (inversion of characters, redoubling of typing, homophony).
The typosquatting also attacks the company names, physical persons’ names… In large scales, typosquatters uses two tools: the statistics supplied by Google and the other security companies of the traffic of the Internet to identify sites with traffic fort. The capacity to be a good observer of the world is also an asset(trump card) to use names with fort potential traffic as star’s names rising, the names of events etc….
Use a software of automatic generation of typo (Try the Generator of typo) which is going to propose all the plausible variants of a domain name by imagining all errors of typing, spelling, dyslexia and phonetics. (The software can be replaced by an eraser and a pencil in the service of a good imagination). New challenges of metalinguistic domain name Domain names are gradually internationalized in a spirit of harmony and equality between the cultures. They also offer new opportunities to the economic operators, and to the cybersquatters. Domain names were born in Anglo-Saxon country.
It explains that, technically, the first domain names could be constituted only letters of the Anglo-Saxon alphabet from A to Z, figures 0 – 9-. This standard of digital coding is called American Standard Code for information Interchange (or ASCII). And so we saw appearing internationalized domain names the radical of which was established by characters others than those understood in the ASCII code: letters stressed by the Latin alphabet, the characters and Chinese, Japanese, Arabic, Hebrew, Indian, Cyrillic, Spanish or Swedish ideograms.
And the technique allowing it, it is even henceforth possible to create extensions from non-ASCII characters. The international system of the intellectual property plans the protection of the rights above the questions of language and alphabet, more particularly in the field of the law of the marks, within the framework of the wider concept of protection against the unfair competition.
The main treaties and the other international instruments concerning the protection of the marks are the Agreement of Paris for the protection of the industrial property, the Agreement on the aspects of the intellectual property rights which touch the business (Agreement on the ADPIC), the Treaty on the law of the marks and the Arrangement of Madrid concerning the international recording of the marks as well as the Protocol concerning this last one.
Furthermore, the common Recommendation of the WIPO concerning measures relative to the protection of the notorious marks supplies guidelines for the protection of the notorious marks at the international level. These texts have for object to avoid the conflicts between marks. The Convention of Paris for the protection of the industrial property ( 1883 ) 15, in which 162 States are parties16, has in particular for object the protection of the marks and the repression of the unfair competition, and contains capacities(measures) relative to the national treatment to the law of priority and to the common rules.
It does not fix the conditions of warehouse and recording of the marks, which must be determined by each of the countries concerned according to its own legal system. When a brand was regularly recorded in its country of origin, the other contracting parties have to admit it in the warehouse and to protect it as it is. The adoption by the Internet Corporation for Assigned Names and Numbers (ICANN), on August 26th, 1999, guiding Principles governing the uniform regulation of the disputes relative to the names of domaine51 followed upon the publication of the first process of the WIPO on the domain names of Internet.
These guiding principles, which came into effect on December 1st, 1999, are designed for the regulation of the conflicts between domain names recorded in one of the generic domains of first . com. net and . org level and brands of products or services. Every holder of a domain name in . com. org is anxious to submit himself to it or . net whose recording is the object of a complaint on behalf of a third party.
The procedure established by the guiding principles allows the applicant to ask for the transfer or for the radiation of a domain name in . com. net or . org for the following motives: a) The domain name is identical or similar to the point to be open to misinterpretation in a mark of products or services on which the applicant has rights; b) The holder of the domain name has no right on the domain name and no justifiable interest which becomes attached to it; and
This guiding principle enumerates then the circumstances upon which the applicant can call to demonstrate the bad faith of the recording and the use of the name of domain. For his part, the defendant has the power to answer the complaint by bringing the proof of the rights which he holds on the domain name and the justifiable interests which become attached to it. Conclusion We could regret at first sight that the status of the domain name is not more protective.
However, and it in spite of the criticisms which can be sent to them, there are numerous solutions today which allow the recovery of a domain name wrongly recorded by a cybersquatter. The efficiency of the classic and alternative institutions in the regulation of these disputes deserves to be underlined, because the other problematic abuses appeared with the Internet do not regrettably find an outcome so favorable. We need to have in mind that nowadays, for all juridical problems linked with the cyberspace, the best defense is a preventive action.