Tag Archives: ADR

The Prevention of Cybersquatting in Europe: Diverging Approaches and Prospects for Harmonization by Ventsislav Pantov [MIPLC Master Thesis Series]

Social Science Research Network logoAbstract: This thesis examines the phenomenon of cybersquatting, its nature and development and the means employed against it in the European continent.

The analysis shows that there is a myriad of approaches in combating cybersquatting. First, many systems of domain name dispute resolution exist, both private and official. Most of the Alternative Dispute Resolution (ADR) systems that have been adopted largely rest on the Uniform Domain Name Dispute Resolution Policy (UDRP) which is already established and has gained a track record. Some jurisdictions have adopted the UDRP completely in spite of its narrow scope. Others have preferred to extend the range of distinguishing signs protected and have adopted extended versions of UDRP. A third group of countries has developed their own sui generis ADRs that are unconnected to the UDRP. The most distinctive characteristic of all ADR examples analyzed is the availability of twofold procedure due to their “open ended” nature. Meanwhile, some jurisdictions have adopted classic arbitration procedures for their domain name disputes which result in final judgments with res judicata effect.

As regards substantive grounds of claim there is also a large variety of approaches. Notably, most of the European countries prefer to extract the bases of anticybersquatting claims from general laws regarding trademarks, unfair completion, passing off, personal and trade name protection. This paper demonstrates that in some cases the traditional legal measures turn out to be insufficient for the challenges of the Internet, which leads to unsatisfactory jurisprudential solutions. In this regard, the cybersquatting activities taking the shape of blocking registrations cause problems for the courts either in establishing “use in commerce” in the trademark context, or misrepresentation in the circumstances of a passing off action. Another tension is observed in the field of clashes between competing rights such as trademarks and personal and trade names, which due to the lack of clear rules results in uncertainty.

Few jurisdictions (e.g. Belgium, Finland, France and Denmark) considered the issue significant enough to enact tailor-made anticybersquatting legislation. The enactment of an anticybersquatting act solves to a great extent the problems caused by the attempts to adapt traditional legal principles, without prejudice to their subsidiary application. Thus, the available examples of special anticybersquatting legislation originating from Belgium and Finland combined with some solutions borrowed from the U.S. Anticybersquatting Consumer Protection Act form the basis of a proposal for enactment of an instrument harmonizing anticybersquatting law in Europe. This process is also conceivable, given the fact that the .eu domain names related disputes are already uniformly managed on an EU level by a Commission Regulation, which also provides some useful examples. Finally, some potential obstacles on the way of harmonization as well as some arguments against it are also considered.

This abstract was sourced, and the article is available to download in full, from:
ssrn.com/abstract=2427582

.EU Dispute Resolution Fees Further Discounted In 2014

EURid logo[news release]  The fee for a basic .eu Alternative Dispute Resolution (ADR) procedure will be cut by a further 50%, according to the .eu registry EURid and the Czech Arbitration Court (CAC), the institution appointed to rule on Alternative Dispute Resolution proceedings for the .eu top-level domain.

The announcement heralds the third year in a row that the cost of .eu ADR proceedings has been reduced.

“The continued reduction of ADR fees will further help rights holders to overcome the financial barrier that prevented them from claiming their rights through .eu ADR proceedings,” commented Czech Arbitration Court Board Member, Petr Hostaš.

EURid’s General Manager Marc Van Wesemael added, “At EURid, we want anyone with a legitimate prior rights claim to be able to challenge a .eu registration. Making the .eu ADR process more affordable, and therefore accessible, is one way of doing this.”

Why ADR
People can challenge a .eu registration if they believe they have a prior right to the domain name and the current holder has registered the name for speculative or abusive purposes. EURid offers the fast and convenient .eu ADR procedure through the independent CAC specifically for this purpose. No travel is required as all cases are conducted online and by email, and in 24 official EU languages. Cases take an average of four months to resolve.

EURid appointed the CAC in 2005 as its ADR provider. In order to make .eu ADR decisions, the CAC selects one or more panellists from its list of 112 accredited international experts.

In numbers
Since the ADR procedure first became available in 2006, 686 cases have been filed – of which 51 in 2013. The ADR panel accepted 35 complaints last year, 10 are still pending. More information about the terms and conditions of the new .eu ADR price structure is available at eu.adr.eu.

This EURid news release was sourced from:
www.eurid.eu/en/news/jan-2014/eu-dispute-resolution-fees-further-discounted-2014

Domain name disputes: the UDRP 10 years on by Tony Willoughby

Legal context: Domain name disputes now form a significant practice area for IP lawyers. However, they rarely merit the expense of litigation. The favoured route to resolution of these disputes tends to be the Alternative Dispute Resolution (ADR) policies for the various domains, the most used of which is the Uniform Domain Name Dispute Resolution Policy (UDRP), which celebrates its 10th anniversary this year (2009).Key points: Complaints launched under the UDRP are decided by independent panellists selected from lists held by the various UDRP service providers, one of which is the World Intellectual Property Organization. The panellists are mainly trade mark lawyers. They come from all over the world. That fact combined with the fact that there is no system of binding precedent under the UDRP means that there is scope for divergence of view among panellists. Of late, panellists have been demonstrating potentially significant divergence of views in relation to the practices of domainers (ie entities whose business is the commercial exploitation of domain names). This article celebrates the success of the UDRP over the last 10 years, but highlights the need for consensus among panellists if the UDRP is to maintain its usefulness in the face of these new domainer practices and principally the automated bulk transfer and commercialisation of domain names.Practical significance: If some route to consensus is not found (by amendment to the UDRP or otherwise), there is a risk that the outcome of disputes involving domainers as respondents will become something of a lottery, leading to a reduced willingness on the part of rights owners to rely on an otherwise cheap and effective form of ADR.To download this research in paper by Tony Willoughby in the Journal of Intellectual Property Law & Practice in full, see:
jiplp.oxfordjournals.org/cgi/content/abstract/4/10/714