International Dispute Settlement at the Trademark-Domain Name Interface

Abstract

The rapid development of digital technologies is having a profound effect on shaping international law in general, and international dispute settlement in particular.

A defining characteristic of digital technologies is their ability to transcend territorial boundaries. Legal disputes implicating these technologies thus challenge the unfettered jurisdictional competence of any single nation state, and complicate the application and enforcement of existing legal rules. Whenever national laws are not entirely harmonized, or conflicts of law principles do not invariably lead to the choice of a single jurisdiction's law, national governments and private parties come under pressure to develop new international mechanisms to cut through the complex, cross-border legal disputes that digital technologies engender.

Nowhere have these dispute settlement pressures created more controversy than in intellectual property law. Intellectual property rights are at the heart of cyberspace. They protect the computer code that forms the architecture of cyberspace-the text, images, and sounds that comprise the bulk of content online, and the symbols that guide consumers through the maze of e-businesses. But the very same technologies that make intellectual property rights an increasingly pervasive part of a digitally networked world also enable infringements of those rights on a massive scale, generating new tensions between intellectual property owners and users over the allocation of legal entitlements and the proper definition of legitimate, non-infringing on-line activities.

At the center of this growing controversy is the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new non-national' procedure governing a narrow class of conflicts between the owners of internet domain names and the owners of trademarks. The UDRP was established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers ("ICANN") in late 1999. It creates a fast and inexpensive online dispute settlement system that allows trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to their marks.

There are at least two important reasons why this new dispute settlement mechanism is worthy of serious study. First and foremost, the process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international dispute settlement, not only for intellectual property rights but also for international law generally. These differences in creation and structure raise questions about the UDRP's legitimacy and, as a result, the legitimacy of the case law it produces.

However, these differences also raise a second and larger concern. The UDRP has been operating for a short time, but national and international lawmakers are already heralding it as a model for resolving a much broader set of transnational legal problems. Although certain aspects of the UDRP are worthy of emulation, in this essay I sound a note of caution and ask some hard questions about how such non-national dispute settlement systems ought to be structured. In particular, I focus on the mechanisms used to control the limited power granted to non-national dispute settlement decision makers.