Refereeing the Web

Nobody likes a cybersquatter. One can’t help but get that sinking feeling cybersquatters evolved from those kids at school who attempt to steal your thunder after eavesdropping on your plans for that big science fair project you’ve been working on so diligently.

Originally, the only recourse has been to buy out the dogmatic domain name glutton – which is exactly what they want – or come up with a different name altogether like the Ontario Hockey League (OHL) did when they discovered someone had already secured and slapped a $50,000 price tag on it. That domain name has since been sold. By punching the URL into your Web browser, an automatic default to whisks the surfer away.

Domain name disputes can also arise from the exponential development of e-commerce. According to CyberAtlas, an estimated 88 per cent of U.S.-based firms alone will be launching new Web sites in the coming months. Undoubtedly, a few on-line conflicts will arise.

In keeping with our peacekeeping tradition, one Canadian company believes they have the answer to the arguments: an on-line arbitration service. Montreal-based eResolution claims to be the only body in the world that’s in a position to handle the full adversarial proceedings on-line from the initial complaint filing stage to the arbitration decision and the transfer of evidence. Backed by the Internet Corporation for Assignment Names and Numbers (ICANN) – a U.S.-based firm that manages and assigns domain names – eResolution has access to a pool of independent arbitrators through its affiliation with, an Amherst, Mass.-based, not-for-profit firm which provides arbitrators from around the world.

eResolution plays the role of court clerk, registering complaints, handling the evidence, transmitting case documents to the decision-makers, and communicating any judgment to the applicable parties.

eResolution’s co-founder and vice-president of legal affairs, Robert Cassius de Linval, said his firm serves a real need in the global community.

“In 1995 when our president (and CEO) Karim Benyekhlef was at a conference in San Francisco on e-commerce and Internet law…he started thinking [about domain name conflicts],” Cassius de Linval said. “We (Benyekhlef, de Linval and Aubert Landry, vice-president of IT for eResolution) went ahead and started developing the software for that and…we were granted accreditation by ICANN on Jan. 1st.”

Only two other bodies have been accredited by ICANN to offer domain dispute resolution services: the National Arbitration Forum in Minneapolis and the World Intellectual Property Organization in Geneva.

Benyekhlef’s history as a professor of public law within the University of Montreal’s Faculty of Law included studying evolving Internet laws, providing the neutral body that is eResolution with a strong, knowledgeable foundation.

Parties who lose a decision and who choose to not honour eResolution’s judgment have little choice but to relent. ICANN’s role on the Web as governing body with all domain names and their registration contracts with each site ensures compliance. Under a policy adopted by ICANN last August, a domain name holder can be forced into the process if someone files a claim alleging their domain is identical or confusingly similar to a trade or service mark; if the holder has no rights or legitimate interests to the domain and if the domain has been registered in bad faith.

“Our affiliation with ICANN and Network Solutions solves a big problem with regards to the execution of a decision,” Cassius de Linval explained from his Montreal office. “If they (a losing party) don’t comply, basically the registrar (ICANN) transfers the name.”

One of three conditions must exist in order for a claimant and eResolution to successfully wrestle a domain name free from a cybersquatter: the filing claimant must show tradename or trademark identification proof similar to the contested domain name; evidence that the registrant of a disputed name has done so illegitimately with no ties to the name; the registrant of the disputed name has done so in bad faith in order to prevent the rightful owner from securing it and/or with aims to make a profit by ways of selling the space to the rightful owner.

Most disputes are resolved within 60 days and eResolution conducts its services for a basic fee of US$750. The company also plans to offer arbitrary services for e-business conflicts in the coming months.

“As far as B2B disputes are concerned, we’re still thinking hard about it,” Cassius de Linval said. “We’ll probably be prepared to roll out a solution for general disputes in the fall.”

Professor Ethan Katsh, a director with the Centre for IT and Dispute Resolution at the University of Massachusetts, said Web conflicts are on the climb.

“There were 586 complaints involving 891 domain names registered (with eResolution) since Jan. 1,” Katsh said. “That’s a substantial amount in only four months.”

Once considered entrepreneurial in nature, cybersquatting is now frowned upon despite the fact that it’s not actually illegal.

“There are two kinds of cybersquatting,” said analyst Jonathan Eunice of Illuminata Inc. in Nashua, N.H. “One is sitting on a McDonald’ or a…it’s easier to win those cases in court or through an arbitrator. The other kind (of cybersquatting) is sitting on a potentially valuable domain name, there are no legal restrictions for sitting on a [non-trademarked] name.”

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