CYBERSQUATTING AND DOMAIN NAME DISPUTE RESOLUTION: AFFIRMING THE BUNDLE OF RIGHTS THEORY SA Cyberla

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CYBERSQUAT
TING AND DOMAIN NAME DISPUTE RESOLUTION
AFFIRMING THE BUNDLE OF RIGHTS THEORY SA
Cyberlaw and ICT Conference, Johannesburg

• Dejo Olowu
• 23 July 2009

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• INTRODUCTION
• Internet and the advent of commercial usage
  trademarks as domain names
• Unending litigation unending criticisms
  metaphors of the law of property for cyberspace
  infringements
• The missing link in the conceptualization of
  remedies philosophical foundations
• The bundle of rights theory.

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• SIFTING THE MATRIX OF TERMINOLOGIES
• The domain name system
• Acquisition of domain names (first come, first
  served)
• Domain name dispute resolution between
  traditional litigation and the UDRP process
• Cybersquatting and typosquatting ransom
  grabbers competitor grabbers domain name
  warehousing (infamous John Zuccarini)
• Bundle of rights theory Blackstones
  exclusionary concept of property Hohfelds
  analysis of jural relations (rights/duties/privile
  ges/no-right) Honores eleven incidents of
  ownershipproperty as a bundle of rights.

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• A COMPARATIVE OVERVIEW OF JURIDICAL RESPONSES
• United States
• Lanham Act and the Federal Trademark Dilution Act
  (FTDA)
• Anti-Cybersquatting Consumers Protection Act
  (1999)normative and remedial antidote
  (Zuccarini)
• Virtual Works (VW)
• United Kingdom
• (One in a Million)Court of Appeal no
  requirement of famous
• Thailand
• Thompson Foundation (2000)

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• OVERVIEW OF JURIDICAL RESPONSES contd.
• Japan
• JACC Company Case (Supreme Court 2002)
• Unfair Competition Prevention Law
• South Africa
• SAIIPL and the UDRP
• Mr. Plastic
• Telkom
• Standard Bank (Daniel Cox)
• Common denominator interpretation of domain name
  rights in the language of property qua trademark
  and intellectual property lawsthe expansion of
  exclusive rights protection.

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• DOMAIN NAMES AS RES RETURN TO THE BASICS
• Basic elements of private property right to use
  right to exclude others from use and possession
  right to transmit use and possession.
• Advantageous for intellectual property claims
  no requirement to be tangible (Harris 1996
  Zemmer 2007)
• The right to exclude all persons from all
  incidents of ownership (inviolability)
  underscores the relevance of the bundle of rights
  theory.
• Corporations and individuals have legitimate
  expectations of protection of their identities
  right to exclude exploiters.

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• BUNDLE OF RIGHTS THEORY A PREVENTIVE THRAPY
  AGAINST CYBERSQUATTING
• Classifying domain names as property has
  tremendous legal (and constitutional)
  implications for most countries determines
  ability to prevent trespass, conversion or
  nuisance at common law to mortgage or split
  rights in a domain name to receive special
  treatment under state laws or to impose or avoid
  trade restraints.
• Allows for in rem action, critical for the
  internet age (should extend to any forum)
• Domain names appearing on WWW are inseverable and
  inseparable from the bundle of proprietary rights
  held by their true owners.
• Reconfiguration or misspelling of trademarks must
  warrant forfeiture to trademark owners.

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• CONCLUSION
• Quest for a philosophical foundation for
  juridical attitude to domain name disputes.
• Accentuating the propriety of locating domain
  name disputes and the incidence of cybersquatting
  in the realm of property law.
• Juridical protection and preservation of the real
  and collateral rights of trademark owners in the
  exclusive use of their trademarks as domain names
  is a reaffirmation of the relevance and currency
  of the bundle of rights theory.
• Thank you for you time and attention!!!