Tempest in a Teapot or Tidal Wave? Cybersquatting Remedies Run Amok
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The conflict at the heart of cybersquatting is in many ways conceptual. To most of its early inhabitants, the Internet embodied a separate and distinct environment --a territory unto itself. As such, it was thought the online world would stand separate from existing governmental power structures premised on the idea of territorial sovereignty. This separateness placed online actors theoretically beyond the authority of established legal systems, whose validity appeared limited by territorial boundaries and the sovereign-subject relationships occurring in the off-line world. Indeed, what many envisioned was an opportunity to create a self-regulating community existing within the "territory" of the Internet and built from the ground up (an ironic phrase) on the libertarian ideal. Of course, this desire for separateness did not blind members of the virtual community to the eventuality of interaction with the off-line world. The commercial potential of the network was apparent to many, if not to established brick-and-mortar commercial interests. With this in mind, online actors began to buy up the most desirable "locations" in this virtual world --domain names corresponding either to popular generic or descriptive terms or to trademarks held by commercial interests under off-line legal regimes. To these speculators, the acquisition of rights in domain names was little more than a land rush in a newly created territory, free of encumbrances, rewarding those who were the first to act by purchase of a claim of right. Existing governmental power structures and the beneficiaries of that authority saw the Internet quite differently; as an extension of the off-line world. This network, comprised of computers and wires anchored to terra firma, and populated by individuals located within existing real-world borders, was, in their view, far from a new and independent territory, but rather merely another medium for communication and commerce. Thus, individuals could not ignore the rights and obligations imposed by virtue of the territorial sovereign-subject relationship simply by acting in the online environment rather than off-line.9 There could be no land rush, because the rights in much of that "land" had already been assigned through a system of trademark rights. Part II of this Article describes this conflict between claims of appropriated rights in the newly created territory of the Internet and the mapping of rights conferred by existing territorially based trademark systems onto Internet space. I begin with an overview of the domain name system and the basics of cybersquatting. I then discuss the development of remedial systems intended to address the problem, from the application of existing trademark law and the weaknesses in that approach, to the AntiCybersquatting Consumer Protection Act (ACPA)' and the Uniform Dispute Resolution Policy (UDRP). Part Il of this Article attempts to situate cybersquatting and its remedies among trademark principles. This links two tracks of progression. The first is the evolution of trademark principles towards property-like exclusive rights. The second uses these principles as a baseline to measure the extension of certain rights applicable in the context of cybersquatting. Here, I focus on the incremental modifications in the substantive terms of the ACPA, and then the more drastic changes imposed in the substantive terms of the UDRP, as effectuated by procedural and institutional biases. In Part IV of this Article, I argue that cybersquatting remedial systems, and in particular the UDRP, have lost touch with the basic principles upon which they were constructed. I point specifically to the expansion of the UDRP beyond our understanding of "cybersquatting" and into more benign instances of domain name conflict. Connecting this to the issue of trademark protections, I argue that the expanded rights described in Part III do not make sense beyond the narrow confines of "traditional" cybersquatting. Application of the UDRP to such a broad range of cases simply cannot be justified even under the most expansive view of property-like trademark rights. Even more importantly, the bargain at the heart of the UDRP - -sacrificing certain constitutional protections in favor of efficiency-- raises questions of validity when applied outside the most obvious and egregious cases of bad faith and abusive domain name registration.
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