TY  - BOOK
AU  - Defossez,Alexandre
TI  - Conflicts between Domain Names and Well-Known Trade Names: The OMPI Approach
PY  - 2006///.
							
N1  - 27
N2  - The 1990s revealed the growing economic importance of the Internet and consequently of domain names for the worldwide visibility of many related commercial undertakings. However, so-called cyber-squatters often usurp trademarks and other distinctive signs in order to deceive internet users or to profit from selling agreements. However, they go unpunished most of the time because of the inadequacy of traditional responses to this mostly international issue. In response, a Uniform Domain Name Dispute Resolution (UDRP) policy was established mainly at the request of trademark holders to tackle this problem. This procedure allows for a fast and inexpensive dispute settlement system put in place by several arbitration institutions, among which the World Intellectual Property Organization is the most important. However, even if this procedure has now been applied since 1999, it remains weak as regards the safeguard of due process. Moreover, an analysis of the decisions rendered by WIPO panels reveals discrepancies between panel decisions, which leads to legal uncertainty. Special attention was given in the first WIPO Report to well-known trademarks. Two special mechanisms were provided: exclusion as gTLDs, registration of such trademarks, and a stay of registration during the alternative dispute settlement procedure. However, none of these procedures was put in place. Meanwhile, well-known trademarks clearly enjoy favorable treatment in WIPO case law. As regards general requirements for disqualifying a domain name, three conditions must be fulfilled. First, the domain name must be identical or confusingly similar to a trademark or service mark in which the plaintiff has rights (which is easier to demonstrate for well-known trademarks). Second, the respondent should have no rights or legitimate interests in respect of the domain name. Third, the domain name must have been registered and be used in bad faith (which is almost always the case when well-known trademarks are involved). Theoretically, these conditions are well balanced, and, if strictly applied, generally acceptable. However, in practice, some theories or ways of constructing these requirements show a pro-trademark bias, for example through the “opportunistic bad faith” test. This has led some scholars to strongly criticize this procedure. In addition, the “success by default” approach, as one author called it, has a clear influence upon the final outcome of decisions reached by the panels. Finally, the “sucks site” issue also reveals tensions between trademark protection and freedom of speech. Proper balance is difficult to achieve in this matter, and only a few decisions, all issued by US panelists, favored the latter at the expense of the former. Ensuring the effectiveness of the procedure and of balanced decisions is of major importance as UDRP is the principal blueprint for any alternative dispute settlement procedure regarding domain name litigation, which is—or might be—put into operation elsewhere in the world
UR  - https://shs.cairn.info/journal-revue-internationale-de-droit-economique-2006-2-page-167?lang=en&redirect-ssocas=7080
ER  -