By Alan Gahtan - October 29, 2001
The Canadian Domain Name Registration Authority (CIRA) recently released a revised draft (September 7, 2001) of its dispute resolution policy (“CDRP”) which is intended to offer a potentially quicker and lower cost alternative to litigation in resolving disputes concerning the bad faith registration of domain names in the .ca registry.
The CDRP is modeled after the Uniform Domain-Name Dispute Resolution Policy (“UDRP”) enacted by the Internet Authority for Assigned Names and Numbers (“ICANN”) approximately two years ago in respect of “.com”, “.net” and “.org” generic top level domain names. Over 3,500 arbitrations have taken place under the UDRP.
The UDRP has been frequently criticized as favoring businesses with trademarked names over the interests of individuals with sometimes legitimate uses in the same words as domain names. CIRA has attempted to address some of the criticisms in the design of its proposed policy. For example, the CDRP contains a broader definition of what can constitute a legitimate use of a domain name and includes good faith use in association with a non-commercial activity including criticism, review or news gathering. Under the CDRP, operators of parody or protest domains (which in many cases contain a trademark plus the word “sucks”) have a chance at keeping such domain names as compared to the high probability of losing the domain names under the UDRP.
Some of the changes, while helpful, may not eliminate all bias in the system. For example, it is likely that at least some of the bias towards trademark holders may be the result of the arbitration system than the rules themselves. Arbitrators may have a financial interest in ruling in favor of trademark holders, who may be more likely to utilize their services in future disputes than are individual defendants.
Another difference between the CDRP and UDRP relates to the number of arbitrators. Under the UDRP, if the complainant elects for a single arbitrator, and if the registrant wishes to have the dispute heard by a panel of three arbitrators (which statistically have been found more likely to render a finding in favor of the registrant), the registrant must pay for the three panelists. In contrast, the CRDP proposes a default panel of three arbitrators of any contested case, while providing for the complainant to elect for a single panelist if the registrant fails to respond.
Under the CDRP, the complainant must show that: (a) the registrant’s .ca domain name is confusing with a mark in which the complainant had rights prior to the date of registration of the domain name and continues to have such rights; (b) the registrant has no legitimate interest in the domain name; and (c) the registrant has registered the domain name in bad faith.
Bad faith registration may be demonstrated by showing: (a) the registrant has registered the domain name primarily for the purpose of selling, renting, licensing or otherwise transferring the registration to the complainant, a licensor or licensee of the mark, or to a competitor of the complainant for valuable consideration in excess of the registrant’s actual costs in registering the domain name; (b) the registrant has registered the domain name or acquired the registration in order to prevent the complainant, or a licensor or licensee of the mark, from registering the mark as a domain name, provided that the registrant has engaged in a pattern of registering domain names in order to prevent persons who have rights in marks from registering the marks as domain names; or (c) the registrant has registered the domain name primarily for the purpose of disrupting the business of the complainant or a licensor or licensee of the mark, who is a competitor of the registrant.
Comments regarding the proposed CDRP must be received by
CIRA by
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