THE MERGING OF TWO WORLDS? CYBER LAW AND TRADE LAW NORMATIVE CONVERGENCE ON INTERNET DOMAIN NAMES

Research output: Journal Publications and Reviews (RGC: 21, 22, 62)21_Publication in refereed journalpeer-review

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Original languageEnglish
Pages (from-to)281-305
Journal / PublicationBoston University International Law Journal
Volume37
Issue number2
Publication statusPublished - Oct 2019

Abstract

If the Internet were a national economy, it would rank in the world's top five. In the coming years, online economies will play an even larger role in the economies of both developed and developing countries. In this booming economy, Internet domain names play an important role as they reflect the business and activities of all companies. Domain names are assets that belong to economic actors and for which they fight. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership Article 18.28 imposes certain requirements on each Party with respect to the management of its country-code top level domain (ccTLD) names which will be analyzed in this Article. These requirements include ensuring there is available a low cost, fair and equitable, and not overly burdensome dispute settlement procedure that does not preclude resort to court litigation. The Article also requires each Party to provide, in connection with a Party's system for the management of ccTLD names, appropriate remedies when a person registers or holds a domain name that is identical or confusingly similar to a trademark with bad faith intent to profit. There is already a great number of disputes which can
only increase in number and magnitude. For a decade, the ICANN has adopted administrative proceedings for resolving domain name disputes outside of the court system-the Uniform Domain-Name Dispute-Resolution Policy. This Article also reviews recent development of the case-law, in respect to cases that involve a party from a developing country, with regard to three elements: (1) the domain name registered is identical or confusingly similar to a trademark or service mark; (2) rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.

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