International Dispute Settlement at the Trademark-Domain Name Interface

Abstract

This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999. The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks.

The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international dispute settlement, not only for intellectual property rights but also for international law generally. These differences in creation and structure raise questions about the UDRP's legitimacy and thus the legitimacy of the case law it is producing.

Second, UDRP is already being heralded by national and international lawmakers as a model for resolving a much broader set of transborder legal problems. Although certain aspects of the UDRP may be worthy of emulation, this essay asks some hard questions about how anational dispute settlement systems ought to be structured. It focuses in particular on the mechanisms used to control the limited powers granted to dispute settlement decisionmakers such as UDRP panels. And it proposes several steps that ICANN should take to bolster the legitimacy of this new dispute settlement system.

JEL Classification: O33, 034