The paradox of territoriality

14 February 2012 · by · in

“The paradox of territoriality: conflicts between trademarks and domain names in light of ICANN’s introduction of generic top-level domains (gTLDs)”

Yes, I sometimes do academic writing, too. Here is my research paper for the Master of Laws (LL.M.) in Intellectual Property programme at The University of Turin Law School and the World Intellectual Property Organization (WIPO) Academy. The full text can be downloaded here (PDF).

Language issue?

Since I’m making this available also on my not-so-academic blog, I’ve been thinking, how can I summarise the content of the paper in everyday language? It’s not an easy task at all and in the end I came up with this one-liner: “Will 2012 bring an end to the Internet as we know it?” OK, that pretty much sums it up, I suppose.

Abstract

Commercially, domain names on the Internet serve the role of quasi-trademarks. Legally and technically, however, domain names and trademarks are two different systems that inherently go against each other’s elemental principles. Because there are no intellectual property rights assigned to domain names per se, disputes over domain names are almost always dealt with upon legal frameworks that are designed to work in favour of trademark rights and interests, as observed over a decade of UDRP arbitration rulings. ICANN’s introduction of generic top-level domains (gTLDs), which is essentially a deregulation and an ultimate globalisation of the domain name system as a whole, strengthens such a trademark-centric approach in a way that systematically and pre-emptively minimises room for future challenges against trademark rights. Fundamentally, however, any endeavour on a global scale to align the governance of globally-unique domain names with territorial trademark interests inevitably harms the conformity to the national trademark laws throughout the world, and consequently threatens the legal basis of the very rights those extra-legal regulations are designed to uphold and enforce. [Full text]

Acknowledgements

I would like to extend my sincere gratitude to Professor Marco Ricolfi, director of the LL.M. IP Turin/WIPO programme, for his encouragement and guidance. I would also like to thank Dr Luca Barbero, head of Studio Barbero and my research advisor, for his expert counselling and direction; Professor Giancarlo Frosio, assistant director of the programme, for his academic support and supervision; and Ms Roba Hamam, legal consultant and my colleague who started this project together, for her research effort in this area as well as help and care in many forms.

Addendum

ICANN closed gTLD submissions on 30 May 2012. Here are some of the developments:

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