The Private Legal Governance of Domain Names

Abstract

This article evaluates the performance of the special private tribunals or panels such as the UDRP which have been developed within complicated systems of self- and co-regulation such as ICANN to decide disputes over domain names. It uses two different dispute resolution models viz. the UDRP (WIPO) and the Danish Complaints Board for Internet Domain Names (the Board) to discuss how and to what extent the domain name system balances interests between trademark owners and other users of domain names and secures the rule of law (legal certainty and predictability) with a special focus on cases where trademarks are used as (parts of) domain names to express criticism of the trademark holder or the trademark itself (e.g. “TMsucks” / “lorteTM”). The article is part of a research project on “User Generated Law” and uses the methodologies developed as part of this.

Keywords: User Generated Law, domain names, UDRP, ICANN, trade marks,