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The Warsaw Voice » Law » February 18, 2009
A D V I C E F R O M S A L A N S
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Cybersquatting-Protecting Your Rights
February 18, 2009   
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The relentless rise of the WWW has changed the way we organize our lives, but it has had zero effect on what it is to be human: we socialize, we express emotions good and bad, and of course some of us lie, cheat and steal-all in cyberspace. Here, I'm taking a look at the phenomenon of cybersquatting: essentially the hijacking on the internet of other people's property in the hope of making money.

Cybersquatting is registration or use of an internet domain including, for the most part, famous or renowned trademarks by people who are not authorized to use them, in order to receive certain benefits. One benefit looks remarkably similar to holding a hostage for ransom: as the trademark owner or interested third party you might have to hand over money to gain the right to use a domain that somehow involves your trademark. This is a serious matter-without full use of your trademark you might end up competing on the marketplace with one arm tied behind your back.

Trademark troubles
What's more, a business rival might be raking in ill-gotten gains from using, in a domain name, the trademark you have invested time, money and effort in building up and attracting your potential clients by creating the false impression that the trademark owner is the user of that internet domain.

When the exclusive right to a trademark is infringed by a cybersquatter, the trademark owner may make a claim in arbitration for the cybersquatter to cease the infringement against the party for whom the domain is registered.

In Poland, many domains are registered with NASK (Naukowa i Akademicka Sieć Komputerowa). For those NASK-registered domains which include the suffix .pl and have at least one party to the dispute resident or with a place of business in Poland, litigation is adjudicated under Polish law by the Arbitration Court at the Polish Chamber of Information Technology and Telecommunications. Here, the parties may go straight for arbitration proceedings, or precede them with the mediation phase. In the majority of cases, the latter proves to be quite a good move as, more often than not, proceedings end at the mediation phase with a satisfactory outcome for the aggrieved party.

Judging disputes
A different forum is used in .pl domain disputes exclusively involving parties not resident or with a place of business in Poland. These are handled by the Arbitration and Mediation Center at the World Intellectual Property Organization, which judges on the basis of WIPO Expedited Arbitration Rules for Domain Name Dispute Resolution. If the parties are unable to reach a unanimous decision as to the procedure's legal basis, the decision is made by the tribunal taking into consideration any observations of the parties and the circumstances of the arbitration.

On the other hand, if the domain name is registered by the Internet Corporation for Assigned Names and Numbers (ICANN) and the domain name suffix is .com, .org, .net, .biz, .info, .aero, .coop, .museum, .name, or .pro, the dispute is adjudicated by an arbitration panel authorized by ICANN, which judges on the basis of the Uniform Domain Name Dispute Resolution Policy (UDRP).

Arbitration rules
The main difference between the arbitration procedure in a .pl domain name and other domain types is that in the first case the rules of arbitration tribunals do not include extensive guidelines with respect to the decision-making process. That includes in particular: when the arbitration panel finds in favor of the claimant, when the defendant acted in bad faith, what sort of evidence may be submitted by the defendant to prove that s/he does not infringe the claimant's rights or what judgment may be issued by the tribunal.

Cyberspace is of course humming with many other sorts of unfair behaviors in addition to cybersquatting. Heading the hit list are spamming, deep linking, spidering, framing, and inlining.

Ewa Kacperek counsel at SALANS Warsaw IP, Technology and Communications team
Katarzyna Krupa associate at SALANS Warsaw IP, Technology and Communications team
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