The Current State of Domain Name Regulation
Domain Names as Second Class Citizens in a Mark-Dominated World
Routledge – 2010 – 296 pages
Routledge – 2010 – 296 pages
In this book Konstantinos Komaitis identifies a tripartite problem – intellectual, institutional and ethical – inherent in the domain name regulation culture. Using the theory of property, Komaitis discusses domain names as sui generis ‘e-property’ rights and analyses the experience of the past ten years, through the Uniform Domain Name Dispute Resolution Policy (UDRP) and the Anticybersquatting Consumer Protection Act (ACPA). The institutional deficit he identifies, generates a further discussion on the ethical dimensions in the regulation of domain names and prompts Komaitis to suggest the creation of an environment based on justice.
The relationship between trademarks and domain names has always been contentious and the existing institutions of the UDRP and ACPA have not assisted in alleviating the tension between the two identifiers. Over the past ten years, the trademark community has been systematic in encouraging and promoting a culture that indiscriminately considers domain names as secondclass citizens, suggesting that trademark rights should have priority over the registration in the domain name space.
Komaitis disputes this assertion and brings to light the injustices and the trademark-oriented nature of the UDRP and ACPA. He queries what the appropriate legal source to protect registrants when not seeking to promote trademark interests is. He also delineates a legal hypothesis on their nature as well as the steps of their institutionalisation process that we need to reverse, seeking to create a just framework for the regulation of domain names. Finally he explores how the current policies contribute to the philosophy of domain names as second-class citizens.
With these questions in mind, Komaitis suggests some recommendations concerning the reconfiguration of the regulation of domain names.
‘This book is a must-read for any legal scholar or policy-maker interested in understanding the international public policy objectives and political negotiations behind Internet domain name policy and trademark law policy. If you want to know how the intersection of trademark law and domain name policy has historically evolved, where it is right now, and where it is going, you have found the right book.' – Robin D. Gross, Imagine Law, San Francisco, Executive Director of IP Justice, and Chair of ICANN’s Noncommercial Users Constituency (NCUC)
‘Few academic studies are as timely and compelling as this book. Dr. Komaitis provides the first comprehensive analysis and history of the UDRP. Dr. Komaitis' questions, insights and reformulations stand to alter the way we understand domain names and their meanings. His answers to the key question: "How can we distance the domain names from the catalytic influence of trademark law" stand to pave a path to fairer and more neutral treatment of domain names for people around the world. This is an unprecedented book.' – Kathryn A. Kleiman, Esq., Senior Internet Law and Policy Attorney, Internet Matters, USA
‘As ICANN proceeds to expand generic top level domains, this timely and thorough critique of the legal regulation of the domain space provides a necessary analysis of the legal nature of domain names. Arguing that without sound ethical principles of equality, fairness and lawfulness underpinnings any regulation of the domain name space is flawed, Komaitis proffers well considered solutions for a just domain name polis firmly rooted in the experience of the first ten years of domain name dispute resolution.' – Catherine Colston, University of Strathclyde, Scotland
'[This book] provides a passionate yet legalistic and well-researched overview of the legal, institutional and ethical problems caused by the clash between domain names and trademarks. This is really the first decent book-length treatment of what is now a decade and a half of legal and political conflict between domain name registrants and trademark holders. But this is more than a static compilation and description of the subject: Komaitis has an original and fundamentally important argument to make.' – Milton Mueller, Internet Governance Project, 2010
1. Introduction: Taking on the Sins of ICANN and the UDRP Part 1: Intellectual Problem 2. Contextualising Property 3. Introducing Trademarks 4. Domain Names: Their Technological, Socio-Economic and Legal Status Part 2: Institutional Problem 5. History of Domain Name Institutionalization 6. "Lex Domainia" – The New Lex Mercatoria? 7. The UDRP and Arbitration 8. Issues of Procedural Unfairness 9. Free Speech in the Context of the UDRP 10. Regulating Domain Names Nationally: The Case of the Anticybersquatting Consumer Protection Act (ACPA) 11. Applying the UDRP and ACPA in the Right Context Part 3: Ethical Problem 12. ‘Haves’ and ‘Have-Nots’ Part 4: Themes and Issues 13. Forwards and Backwards 14. Repeating the Same Mistakes: New GTLDs and the IRT Recommendation Report
Konstantinos Komaitis (Ph.D, LLM (Strathclyde University) and LLM (University of Sheffield)) is a lecturer at the University of Strathclyde, UK. He was also a member of ICANN's Special Trademark Issues (STI) team and a drafter of the Uniform Rapid Suspension (URS) system.