Don't Thing but Look: The Practice of the UDRP Manifest that it is Procedurally Unfair

Don't Thing but Look: The Practice of the UDRP Manifest that it is Procedurally Unfair

Konstantinos Komaitis (University of Strathclyde, UK)
DOI: 10.4018/978-1-60566-378-4.ch012
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Over the past decade, electronic commerce has expanded and has provided new ways of conducting businesses in a brand new environment. Lately u-commerce seems to be pioneering the field of electronic transactions. Where ‘u’ stands for ubiquitous, unison, unique and universal, u-commerce offers the opportunity to users to conduct business everywhere and at any given moment in time. The simplicity of u-commerce transactions makes the issue of domain names more relevant than ever before. This chapter examines the procedural unfairness of the Uniform Domain Name Dispute Resolution Policy (UDRP) in an effort to demonstrate that the ‘regulatory’ framework surrounding domain names does not respect their technological necessity.
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The Internet is responsible for a significant wave of change. It introduced new ways of human and business interaction, its email and instant messaging services have dominated and substituted traditional post and other means of communication whilst commercial notions and practices have taken new dimensions. Electronic commerce has provided us with the opportunity to open up to new markets and cultures; it has helped us to exchange goods and services without the need to depend upon national or regional interests; it has allowed us to browse goods in a fast and often a more affordable way. The success of electronic commerce has attracted the attention of governments, which they currently invest money and resources to sustain and develop online transactions, but has also been responsible for technological advancements. The manifestation of these technological innovations can be found in the way commerce is currently translating business transactions. Mobile commerce (m-commerce) has rejected the necessity of a computer and has allowed users to use their mobile telephony and the Internet to buy and sell goods. And, as if m-commerce was not enough, consumers and business are given the world of u-commerce.

U-commerce, like its predecessor m-commerce, is merely an extension of e-commerce. Where ‘U’ stands for ubiquity, uniqueness, universality and unison, this new form of commerce aims to provide new alternatives for B2C and B2B transactions, develop a more efficient way for conducting business and increase the levels of productivity (Schapp et al, 2001). Watson et al, define u-commerce as “the use of ubiquitous networks to support personalised and uninterrupted communications and transactions between a firm and its various stakeholders to provide a level of value over, above, and beyond traditional commerce” (Watson et al., 2002). The four “U” – the main value drivers behind u-commerce - allow user access at any time and from anywhere (ubiquity), provide users with unique identification schemes (uniqueness), determine that mobile devices are compatible with universal standards (universality), and cover the idea that there is “integrated data across multiple applications so that users have a consistent view on the information-irrespective of the device used” (Watson, 2000).

The implications of this technological progression provide a new meaning to globalisation and create a chain reaction for consumers and businesses. The ease of purchase and the multitude of options create more competitive markets and provide an incentive for more businesses to acquire an online presence. This online presence is currently materialised through the Domain Name System (DNS), which ensures that entrepreneurs, start-up businesses and established brands will be visible to consumers. Domain names constitute essential features of the Internet and they have established a user-friendly system, which allows the Internet to transform into a global village that indulges the exchange of ideas, cultures, goods, services and information. With 101,214,524 registered domain names and sale revenues rising to $72,132,458, the domain name market has become one of its own.

Domain Names are the alphanumeric text strings to the right of an “@” in an e-mail address or just after the two slashes in a World Wide Web address. By practice, domain names can be mapped to a thirty-two-bid number consisting of four octets (sets of eight binary digits) that specifies a network address and a host ID on a TCP/IP network (White Paper, 1998). They have been called the “human-friendly address of a computer (WIPO, 1999). This potential “friendliness” is the source of many commercial and legal disputes, since businesses have come to realise their domain names as an important identifier, even a brand. These disputes concerning the conflicting rights of trade mark owners and domain name holders are regulated under the umbrella of the Internet Corporations for Assigned Names and Numbers (ICANN) Uniform Domain Name Dispute Resolution Policy (UDRP).

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