A  CLOSER  LOOK  AT  CYBERSQUATTING

MANILA, January 25, 2005 (STAR) HINDSIGHT By Josefina T. Lichauco  -  Domain names, just like trademarks and slogans, are of great value to a business enterprise. Failure to protect your rights to your domain name could result in its loss, along with the benefits name recognition provides.

And such loss will happen if a competing business entrepreneur who claims to have a trademark or domain name similar to yours, demands that you cease and desist from using your domain name and trademark. Should this happen, you will need to consult a lawyer well versed in the present state of domain name litigation to find out if your competitorís claim is valid or not.

With a business domain name goes its trademark which has great value, its good reputation, its track record and other intangibles, which all have to be protected. Thatís the reason we have trademark, patent and copyright laws.

A personal domain name needs to be protected too, as it is no less valuable to a person in this Internet society we prevail under right now. And this happened to Loren Legarda probably five years ago, when she told me that someone was selling to her a domain name bearing her very own name "lorenlegarda." There were still no orders or issuances from the National Telecommunications Commission (NTC) for the protection of cases like hers. I have lost track of what happened after she consulted her lawyer, but I was no longer at the NTC then.

But sheís in exciting company, the likes of some of my favorite movie stars like Richard Gere, Johnny Depp, Brad Pitt, Kevin Costner, Meryl Streep and Halle Berry. What do they have in common with Tiger Woods aside from their celebrity status?

Each of these famous men and women found out that their names were used as part of Internet sites without permission. For $70 or thereabouts, would-be entrepreneurs regularly register celebritiesí and other famous names, then try to charge (to use the word "extort" may still be a strong word to use as penal legislation worldwide is far from complete) high fees to sell them back.

Money is not necessarily the only motive. Tennis star Serena Williamsí name had been registered by a California attorney to attract visitors to a site promoting his views on sexism and racism. Sexy actress Sharon Stoneís name had been registered as a lure to a pornographic site unrelated whatsoever to the actress. We have to bear in mind even in this day and age that a womanís name and personal reputation are both more delicate than the maleís. I read somewhere that "it is at once the most beautiful and most brittle of all human things."

The polite, technical term for turning someone elseís name or trademark into a web site is "abusive domain name registration." But globally, whether the purpose of wrongfully using someone elseís name is for mere diversion or confusion just for the fun of it, or wrongfully using someone elseís name for blackmail or any malicious intent, the practice is more commonly known as cybersquatting, which, I am sure many of you have heard before.

With a business domain name attaches its trademark which has great value, good reputation, track record, slogans, personnel, etc., which all have to be protected. Thatís the reason we have trademark, patent and copyright laws. These laws have been governing the jurisdiction of the world for years.

But the emergence of the World Wide Web, I am absolutely certain, did not, and will not be able to repeal more than a hundred years of trademark law. If, for instance, I were to put out a magazine called Sharon Stone magazine, and it was a pornographic magazine, heaven forbid, that should clearly be stopped if we were sincere about enforcement. In the e-commerce world, itís no different putting it on the Internet. Of course, the lines are clearer in the paper-commerce world, where such misappropriation of names has been litigated for decades and decades.

Atty. Kathleen Heceta, currently one of two deputy commissioners of the NTC who used to be my very efficient deputy head of delegation for quite a long time to the plenipotentiary conferences of the International Telecommunications Union (ITU), the biggest UN agency governing world information and communications technology, provided me with a statement to which I wholeheartedly agree: "Public interest requires government involvement in the management of Internet domain names and addresses. Their registration is not only a matter of operational and technical coordination, but encompasses complex and sensitive concerns as security, protection of individual rights, competition, equal access, and even that of sovereignty among nations."

Kathy was head of the legal division of the NTC when we first demonopolized and liberalized the telecom environment, and has served quite a number of NTC chairmen. With the wealth of knowledge and experience she has in her, I believe that no NTC chairman can do without her.

I am one with her as she states that public interest, likewise, requires the equitable balance of the interests of all stakeholders, transparent rules and regulations including dispute resolution procedures, a fair competitive environment and the representation of the interests of the population of a country or territory for which a country code top level domain (ccTLD) has been delegated. This ensures the public the benefits of technologies and of the global information infrastructure.

She also pointed out what the ITU Secretary General Yoshio Utsumi, who has remained a good friend of Kathyís and mine, that, "In the information society, no human being should be left behind." Unfortunately, as the secretary general serves out his second term, the digital divide still seems to spring eternal and millions and millions of world citizens are, sadly, being left behind.

But we can, of course, say as Deputy Commissioner Heceta does, that the advent of the Internet has enhanced access in developing countries like the Philippines by offering a relatively cheap, versatile and technically efficient service making less onerous the traditional disadvantages of the developing world. This has allowed developing nations to leapfrog into the development mainstream, participate in the emerging digital technology and make the potential of e-commerce more promising.

And itís certainly very true that abuses, threats, and other challenges prevent the extension of the benefits of technologies, so that the management of domain names and addresses, for which governments are now encouraged to take an active role at the domestic and global arena, collaborating with all stakeholders in the management to ensure that the advances of technology benefit the entire global telecommunity.

This issue of cybersquatting is being addressed by an international corporation, the ICANN (Internet Corporation for Assigned Names and Numbers), the World Intellectual Property Organization (WIPO) and the different congresses of the world. But laws somehow always manage to trail behind recent technology whether the issue is cloning people or just their names.

The CICT (Commission on Information and Communications Technology) issued recently in August 2004, Memorandum Circular No. 1, which provides the necessary guidelines in the administration of the .ph domain, currently being undertaken by a corporation owned by a certain Mr. Disini (donít know whether spelling is correct), but the circular gives said entity three months from its effectivity to notify the CICT whether it will act as an administrator or registrar but not both.

An administrator, according to Memorandum Circular No. 1, shall be a corporation organized under Philippine laws and operating in the Philippines, at least 60 percent of its capital owned and controlled by Philippine citizens. No member of its board of directors/trustees must be related within the fourth degree of consanguinity or affinity or have any interest in any registrar or the registrarís business. Its most important duty is to protect the safety and integrity of its zone file data and impose measures to assure continued operation of the registry and resolution of names within the .ph ccTLD.

One important provision of Memo Circular No. 1 is the provision in Sec. 6, Art. X that the CICT may develop guidelines and mechanisms which will provide an ADRS (alternative dispute resolution system).

The fact that another has a claim to the same name you have does not prevent you from cornering the cybermarket or all domains using that name, as long as you are acting in good faith. If you register a desired name first, in order to make certain you get it, before anyone else, you must likewise be prepared to give it up to that somebody if they can show a superior right to it. On the other hand, if you register a name first to which someone else has a lesser or equal claim, you might be able to sell or license your right to it at a profit.

In one extraordinary case, a domain name sold for $7.5 million (www.business.com), which had been purchased for $150,000 only three years earlier. Not a bad business at all.


Reported by: Sol Jose Vanzi

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