The Prevention of Cybersquatting in Europe: Diverging Approaches and Prospects for Harmonization
MIPLC Master Thesis Series (2012/13)
78 Pages Posted: 22 Apr 2014 Last revised: 28 Apr 2014
Date Written: September 10, 2013
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.
Keywords: MIPLC, Domain names, cybersquatting, harmonization, trade marks, unfair competition, ADR, registrars, ccTLD
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