Borrowing from our Common Law Cousins: American and British Influences on the Merger of Canadian Trademark and Internet Domain Name Laws
New York University School of Law; McGill University Faculty of Law
Arizona Journal of International and Comparative Law, Vol. 22, 2006
This article posits that Canadian trademark law is sufficiently circumscribed to regulate the realm of Internet domain names. The overarching purpose of its thesis aims to identify an inherent compatibility between Canadian trademark law and the Internet, while also clearly delineating the Canadian legal framework vis-a-vis domain names. In shedding light on this legal symbiosis, the article ventures upon a comparative study of Canadian, US, and UK jurisprudence, while also taking stock of certain arbitral structures such as ICANN, in order to highlight horizontal legal transplants that will have direct incidence on Canadian online business. Among the themes canvassed, particular emphasis is placed on the ever-increasing extraterritoriality of US law in this field, along with the acknowledgment that US judicial precedents wield considerable influence over Canadian intellectual property policy. As a corollary to this proposition, deference to transboundary domain name litigation and transnational law-derived considerations also pervade the discussion. The merging of Canadian trademark law and Internet domain name regulation is ultimately actuated through the extension of foundational trademark concepts, such as confusion and passing off, to the Internet, along with judicial pronouncements emanating from cognate common law jurisdictions, which are conflated into a single, overriding approach.
Number of Pages in PDF File: 79
Keywords: Trademarks, Internet, Domain Names, E-Commerce, Intellectual Property, Passing Off, Confusion,Torts, Legal Transplants, ICANN, Cybersquatting
JEL Classification: K00, K13, K19, K29, K39, K49
Date posted: February 22, 2006
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