Trade agreement has domain name dispute language

The draft text of the Free Trade Area of the Americas agreement released this week proposes requiring operators of country-code top level domain names in signatory countries to adopt a controversial system for settling trademark disputes over Internet domain names.

The FTAA agreement aims to reduce barriers and tariffs in the Western Hemisphere by creating one set of trade rules for the 34 countries in North and South America, except Cuba. The draft agreement is divided into nine areas that are being negotiated such as market access, agriculture, investment services, intellectual property rights and government procurement.

Under the intellectual property section, language has been proposed that would require the operators of the country code top-level domains (ccTLDs), such as .br for Brazil or .ca for Canada, in signatory countries to abide by the uniform dispute resolution process (UDRP) developed by the Internet Corporation for Assigned Names and Numbers. Icann was picked by the US government in 1998 to manage the Internet's domain name system.

This language in the agreement is still under discussion, however, and could be dropped from the final version of the pact. The US Trade Representative's office released a draft text of the agreement earlier this week.

Icann's dispute resolution process was developed to help settle disputes brought by trademark owners against those accused of "cybersquatting", the practice of registering domain names in hopes of selling it back to a trademark owner for a profit.

But since it was adopted by Icann in 1999, this dispute resolution process has been criticized by those who claim it is biased in favour of trademark interests.

"The UDRP lacks basic due process," said A Michael Froomkin, law professor at the University of Miami. He served on an advisory panel of the World Intellectual Property Organisation, which developed the report that Icann used to help develop its UDRP.

Currently, the UDRP applies only to global domain names such as .com, .org and .net. Icann does not have authority to impose this process on the country-code operators. Any language requiring the country-code operators to adopt the UDRP would likely please trademark owners, who have been pushing these operators to adopt dispute resolution processes.

However, Icann spokeswoman Mary Hewitt said her group did not push for its UDRP to be included in the FTAA. She added that, "we are pleased that it is included. It does allow disputes to be resolved in a quicker and cheaper way".

It is unclear who proposed adding the language to the FTAA. A spokesman for the US Trade Representative did not have an immediate response to questions about the language.

An organisation of ccTLD operators has been working on a dispute resolution system of their own but many of the operators have resisted adopting Icann's version.

Many country-code operators "are moving in that direction. Many take a look [at Icann's UDRP] and say, 'We have got our own special issues and concerns in our jurisdiction that we want to address,' " said Michael Geist, law professor at University of Ottawa. "They are concerned with the way the UDRP has functioned... The idea that it will be imposed on them, makes no sense."

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