Legal Issues in International Web

Legal Issues in International Web Marketing

An Internet domain name is an alphanumeric name given to a web site for identification purposes. In the beginning of the Internet the registration of domain names was done on a first come first serve basis, and in a lot of countries is still done that way today. People could register any domain name that they wanted, regardless of whether it infringed on a trademark holders rights or not. Since the Internet has come to play such an important role in the way that we do things, the issuance of domain names has become a hot issue that has led to some initiatives being developed to help protect the rights of trademark holders. The first thing that was done was that all of the key Internet players got together and adopted the Generic Top Level Domain Name Memorandum of Understanding (gTLD MOU). The purpose of this was to set up a world wide system for allocating domain names while lending more simplicity and accuracy to the entire process (Fitzgerald, Gamerstsfelder, & Gulliksen, 1998).

Because of the ever growing usage of the Internet in all countries around the world it is becoming even more difficult to protect trademarks, copyrights and intellectual property rights.

Every country has its own rules and regulations surrounding a domain dispute which makes it very difficult to protect corporate identities on the Internet. Not only do most countries require that the complainant bear the burden of proof in domain name cases, but they must do it in the native language of the country in which the complaint is being filed. These rules are very different than those that have been set forth by the International Corporation for Assigned Names and Numbers (ICANN), domain dispute resolution policies. These rules specify that complaints attempt to be settled through an administrative process before escalating to a legal process. A complainant must prove the following in an administrative proceeding: that their domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights, that the other party has no rights or legitimate interest in respect of the domain name and that their domain name has been registered and is being used in bad faith (Warholic, 2009).

In Brazil, registration of domain names is handled by the FAPESP (Sao Paulo State Foundation for Academic Research). To date there have not been any uniform dispute resolution rules put into place by the FAPESP (Daniel, 2002). According to Aoki, "Disputes involving.br Top Level domain name registration must be solved through settlement between the parties or litigation. To solve a.com Top Level domain name dispute, Brazilian companies are presenting claims before the ICANN panel (Internet Corporation for Assigned Names and Numbers), a World Intellectual Property Organization (WIPO) administrative organization" (2001).

The first company in Brazil to bring a claim before the WIPO was a telecommunications company known as Embratel. Their grievance was with the domain names "embratel.net" and "embratel.com," which had been registered by a third party in the United States. The panel ruled that Embratel had rights to these domain names. They based their decision on the fact that Embratel is a recognized trademark around the world (Aoki, 2001).