Les noms de domaine sont des objets polymorphes, à la fois techniques et sémantiques. La question de leur régulation, avec l’essor du Domain Name System, est rapidement devenue un défi de taille pour le législateur. Face à une certaine défaillance du droit étatique s’est développé un véritable corpus supplétif de source privée. C’est notamment le cas des procédures extrajudiciaires de résolution des conflits mises en places par l’ICANN. Ces différents mécanismes de nature transnationale forment un ensemble cohérent, en constante évolution, que l’on peut qualifier de véritable lex domainia. Ce concept implique cependant une vision nécessairement pluraliste du droit - où cohabitent systèmes publics, privés et hybrides -, qui invite le juriste à repenser la théorie des sources. Cette thèse contribue à la compréhension de la nature et de l’articulation de ces différentes sphères normatives. Celles-ci ne doivent pas être considérées comme des espaces clos et hermétiques ; il existe entre eux des perméabilités qui dessinent un dispositif de régulation transnational aux sources plurielles. Il s’agit, selon l’auteur, d’une parfaite illustration de la théorie du réseau. / Domain names are polymorphic objects, whose nature is both technical and semantic. The question of their regulation has quickly become, with the rapid growth of the Domain Name System, a major challenge for the lawmaker. A certain default of state law favored the development of what one might call a private supplementary corpus. This is notably the case for extrajudicial domain name dispute resolution mechanisms promoted by the ICANN. These various transnational mechanisms form a coherent whole, in constant evolution, which can be described as a real lex domainia. This concept, however, necessarily implies a pluralistic conception of law - where public, private and hybrid systems cohabit -, which invites legal theorists to rethink the sources theory. This thesis contributes to the understanding of the nature and the articulation of these various normative spheres. These should not be regarded as closed and hermetic spaces ; permeabilities exist between them, that draw a transnational regulation pattern with plural sources. This is, according to the author, a perfect illustration of the mesh theory.

Submitted by JOSIANE SANTOS DE OLIVEIRA (josianeso) on 2018-07-30T16:40:59Z No. of bitstreams: 1 Aleteia Hummes Thaines_.pdf: 2869276 bytes, checksum: b5ff266335af772653e39b0874d2e709 (MD5) / Made available in DSpace on 2018-07-30T16:40:59Z (GMT). No. of bitstreams: 1 Aleteia Hummes Thaines_.pdf: 2869276 bytes, checksum: b5ff266335af772653e39b0874d2e709 (MD5) Previous issue date: 2018-02-22 / CAPES - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / A presente Tese doutoral tem como tema o instituto da arbitragem para a solução de controvérsias relativas aos nomes de domínio e a OMPI, enquanto organização detentora de poder decisional. Para tanto, enfocará a arbitragem internacional, numa perspectiva sistêmico-organizacional, e seus fundamentos para a solução de controvérsias envolvendo os nomes de domínio a partir da Política Uniforme de Resolução de Conflitos da ICANN e a atuação do Centro de Arbitragem e Mediação da OMPI, enquanto atores de produção de decisões. O problema de pesquisa eleito reside no seguinte questionamento: As decisões comunicativas oriundas do Centro de Arbitragem e Mediação da OMPI proporcionam soluções adequadas aos conflitos sobre Domain Names e se revelam aptas a balizar a efetivação do instituto da arbitragem naquelas disputas? Visando à indagação proposta, estabeleceu-se como objetivo geral compreender a arbitragem como meio adequado para a resolução dos conflitos envolvendo os nomes de domínio a partir da atuação do Centro de Arbitragem e Mediação da OMPI e a vinculação de suas decisões. De modo específico, a pesquisa pretende: (a) estudar a teoria das organizações e os aportes da Teoria Sistêmica Luhmanniana; (b) analisar os signos distintivos, enquanto elementos do Direito de Propriedade Intelectual, e a importância da proteção ao Sistema de Nomes de Domínio em uma sociedade globalizada e de alta concorrência comercial; (c) apresentar a arbitragem como instituto não jurisdicional de resolução de conflitos para a redução de complexidade das controvérsias relacionadas aos nomes de domínios; (d) verificar, por amostragem, analisando suas decisões, a atuação do Centro de Arbitragem e Mediação da OMPI na resolução das controvérsias ligadas aos nomes de domínio. Para tanto, a pesquisa estabeleceu como procedimentos metodológicos: (1) a realização de levantamento bibliográfico, baseado em livros e artigos publicados em periódicos relevantes sobre a temática; (2) pesquisa documental, em que se analisaram os instrumentos estabelecidos pela ICANN e pela OMPI no que tange às políticas, regras e entendimentos jurisprudenciais dos casos envolvendo conflitos em nome de domínios. Face à vinculação à linha de pesquisa “Sociedade, Novos Direitos e Transnacionalização”, foi eleito para o seu desenvolvimento do trabalho o método sistêmico, preconizado por Niklas Luhmann, que não é indutivo nem dedutivo, visto que pretende descrever os sistemas (aberto e 8 fechado) e sua relação com o ambiente. Com a análise das decisões do Centro de Arbitragem e Mediação da OMPI, foi possível concluir que este se constitui como organização produtora de comunicações decisionais e vinculativas para a solução das controvérsias envolvendo nomes de domínio, sendo a arbitragem a técnica eleita. Todavia, o procedimento arbitral utilizado se diferencia do tradicional, porquanto a política da ICANN considera fundamental a publicização do conteúdo das decisões, caracterizando, assim, um modelo de arbitragem “sui generis”, específica para casos que digam respeito a domain name. / This research has as theme the arbitration institute for the solution of controversies relative to domain names and the WIPO, as an organization holder of decisional power. Therefore, will focus the international arbitration, in a systemic-organizational perspective, and its elements for the solution of controversies involving domain names, from the Uniform Domain Name Dispute Resolution Policy (UDRP) of ICANN and the acting of the Arbitration and Mediation Center of WIPO, while actors of decision makers. The research problem elected lies in the following questioning: The communicative decisions from the Arbitration and Mediation Center of WIPO provice suitable solutions to conflicts over Domain Names and reveal themselves able to mark the effectiveness of the arbitration institute in those disputes? Aiming at the proposed quest, was established as the general objective, understand arbitration as appropriate means for the resolution of conflicts involving the domain names, from the performance of the Arbitration and Mediation Center of WIPO and the binding of their decisions. Specifically, this research intends: (a) study the theory of organizations and the contributions of Luhmann's Systemic Theory; (b) analyze the distinctive signs, while elements of the Intellectual Property Rights, and the importance of protection to the Domain Names System in a globalized society and high commercial competition; (c) present the arbitration as a non jurisdictional institute of conflict resolution for the reduction the complexity of the controversies related to domain names; (d) check, by sampling, analyzing their decisions, the performance of the Arbitration and Mediation Center of WIPO in resolving controversies linked to domain names. Therefore, the research established as methodological procedures: (1) the carrying out of a bibliographic survey, based on books and articles published in relevant periodicals on the subject; (2) documentary research, where was analyzed the established instruments by ICANN and by WIPO in what concerns the policies, rules and jurisprudential understandings of cases involving conflicts in domain names. Face to the linking of the research line “Society, New Rights and Transnationalization”, was elected to its development of the research, the systemic method, advocated by Niklas Luhmann, which is neither inductive nor deductive, since it intends to describe the systems (open and closed) and its relation with the ambience. With the analysis of the decisions of the Arbitration and Mediation Center of WIPO, it was possible to conclude that constitutes itselves an organization that produces decision-making and binding 10 communications for the solution of controversy involving domain names, being the arbitration the technique chosen. However, the arbitration procedure used, differs from traditional, because the policy of ICANN, considers essential to publicize the content of decisions, thus characterizing, an arbitrage model “sui generis” specific to cases involving the domain names.

Domain names are still a relatively unknown occurrence and despite being a natural part in most people’s every-day life, there are few who reflect over their importance. The original function of domain names was merely to serve as technical addresses and to facilitate the locating of websites on the Internet. Today domain names are much more than this. In addition to the address function, domain names may also serve as indications of goods, services, businesses or information. The domain name is usually the first contact one gets with a website and it has become crucial for businesses to have their company name or trade marks registered as domain names. The issue of the legal status of domain names has mainly been discussed from an American point of view and in Sweden this discussion has almost entirely fallen under the radar. If the legal status of a domain name were clear, it would be easier for businesses to avail themselves of the value of that domain name. It would possibly even contribute to strengthening the legal protection for the domain name holder, in for example insolvency or bankruptcy procedures. Intellectual property exists in many different forms, the main being patents, trade marks, copyright and design rights. Although there are many differences between them, they all have in common that they establish property protection over intangibles such as ideas, inventions, signs and information. As a domain name is not a physical object, there can be no doubt that it is an intangible. The question is whether it is property. Intellectual property is not a static area and it can, in line with societal and technological development, be expanded to include new types. The legal status of domain names is generally discussed in the light of the close connection they have with trade marks. Except from their original function, the trade mark function of domain names can probably be considered as one of the most commonly accepted. It is indicated in this thesis that that function contributes to that a domain name can be considered as a distinctive sign and thereby obtain protection, in the same way as an unregistered trade mark. According to current accounting rules, businesses may, to some extent, avail themselves of the value of a domain name. Domain names are under certain circumstances identified as intangible assets and even as ‘similar rights’ to for example trade marks and patents in accounting and taxation situations. At this time it is not possible to legislate on the area of the legal status of a domain name on a Community level, as this most likely would have to include a consideration of the existence of property rights and consequently fall outside the legislative powers of the Community. Both the legal development and the legal discussions on the topic of the legal status of domain names in Sweden have been relatively sparse. Nonetheless, there have been some interesting opinions. By investigating what positions the different authorities, academics and practitioners have taken on the legal status of domain names it can be concluded that the prevailing opinion in Sweden is that domain names are not considered as property. The reason for this seems to be that domain names as such, are in fact no more than technical constructions and that by registering a domain name the registrant only becomes the holder of a contractual right. However, there are some diverging opinions which could suggest that the legal status of domain names in Sweden is not yet settled. The aspects which are then taken into consideration include that domain names have developed to become important and valuable assets for an increasing number of businesses. A domain name is a precondition for the creation of a website and therefore of crucial importance for, in particular, online based businesses. However, they are of increasing importance for all businesses to reach out to and compete over the same customers. It is advocated that the fact that domain names are freely traded with indicates that domain names are property. It has also been questioned whether an asset with a true economic value, such as a domain name, can exist without being considered as an item of property. The steps taken in other jurisdictions have shown that the legal status of domain names is not even clear in some of the countries with the greatest experience of domain names. Nonetheless, the legal status is given attention in those countries and the discussion has been initiated. In general, it can be concluded that the development seems to go toward higher awareness of the value of domain names.

<p>Domain names are still a relatively unknown occurrence and despite being a natural part in</p><p>most people’s every-day life, there are few who reflect over their importance. The original</p><p>function of domain names was merely to serve as technical addresses and to facilitate the</p><p>locating of websites on the Internet. Today domain names are much more than this. In</p><p>addition to the address function, domain names may also serve as indications of goods,</p><p>services, businesses or information. The domain name is usually the first contact one gets</p><p>with a website and it has become crucial for businesses to have their company name or</p><p>trade marks registered as domain names. The issue of the legal status of domain names has</p><p>mainly been discussed from an American point of view and in Sweden this discussion has</p><p>almost entirely fallen under the radar. If the legal status of a domain name were clear, it</p><p>would be easier for businesses to avail themselves of the value of that domain name. It</p><p>would possibly even contribute to strengthening the legal protection for the domain name</p><p>holder, in for example insolvency or bankruptcy procedures.</p><p>Intellectual property exists in many different forms, the main being patents, trade marks,</p><p>copyright and design rights. Although there are many differences between them, they all</p><p>have in common that they establish property protection over intangibles such as ideas,</p><p>inventions, signs and information. As a domain name is not a physical object, there can be</p><p>no doubt that it is an intangible. The question is whether it is property. Intellectual</p><p>property is not a static area and it can, in line with societal and technological development,</p><p>be expanded to include new types.</p><p>The legal status of domain names is generally discussed in the light of the close connection</p><p>they have with trade marks. Except from their original function, the trade mark function of</p><p>domain names can probably be considered as one of the most commonly accepted. It is</p><p>indicated in this thesis that that function contributes to that a domain name can be</p><p>considered as a distinctive sign and thereby obtain protection, in the same way as an</p><p>unregistered trade mark.</p><p>According to current accounting rules, businesses may, to some extent, avail themselves of</p><p>the value of a domain name. Domain names are under certain circumstances identified as</p><p>intangible assets and even as ‘similar rights’ to for example trade marks and patents in</p><p>accounting and taxation situations.</p><p>At this time it is not possible to legislate on the area of the legal status of a domain name</p><p>on a Community level, as this most likely would have to include a consideration of the</p><p>existence of property rights and consequently fall outside the legislative powers of the</p><p>Community.</p><p>Both the legal development and the legal discussions on the topic of the legal status of</p><p>domain names in Sweden have been relatively sparse. Nonetheless, there have been some</p><p>interesting opinions.</p><p>By investigating what positions the different authorities, academics and practitioners have</p><p>taken on the legal status of domain names it can be concluded that the prevailing opinion</p><p>in Sweden is that domain names are not considered as property. The reason for this seems</p><p>to be that domain names as such, are in fact no more than technical constructions and that</p><p>by registering a domain name the registrant only becomes the holder of a contractual right.</p><p>However, there are some diverging opinions which could suggest that the legal status of</p><p>domain names in Sweden is not yet settled. The aspects which are then taken into</p><p>consideration include that domain names have developed to become important and</p><p>valuable assets for an increasing number of businesses. A domain name is a precondition</p><p>for the creation of a website and therefore of crucial importance for, in particular, online</p><p>based businesses. However, they are of increasing importance for all businesses to reach</p><p>out to and compete over the same customers.</p><p>It is advocated that the fact that domain names are freely traded with indicates that domain</p><p>names are property. It has also been questioned whether an asset with a true economic</p><p>value, such as a domain name, can exist without being considered as an item of property.</p><p>The steps taken in other jurisdictions have shown that the legal status of domain names is</p><p>not even clear in some of the countries with the greatest experience of domain names.</p><p>Nonetheless, the legal status is given attention in those countries and the discussion has</p><p>been initiated. In general, it can be concluded that the development seems to go toward</p><p>higher awareness of the value of domain names.</p>

Universiẗat, Diss.--Freiburg. i. Br., 2005. / Literaturverz. S. 274 - 285.

Thesis (doctoral)--Albert-Ludwigs-Universität Freiburg im Breisgau, 2007. / Includes bibliographical references (p. 271-284).

The thesis analyses selected aspects of domain-name law, mainly from the perspective of trade-mark law. It discusses the evolution of the domain-name system and how it operates as background to a more detailed discussion of the theoretical classification of domain names. The thesis then examines the interplay between trade marks and domain names, and the resolution of domain-name disputes resulting from the inherent tension between these two systems. The main principles of domain-name dispute resolution are identified by way of an analysis of the panel decisions handed down in terms of the international Uniform Dispute Resolution Policy (UDRP) and the South African domain name dispute resolution regulations. This analysis always addresses, too, the extent to which national trade-mark law principles (with reference to the laws of South Africa, the United Kingdom, and the United States of America) apply, and the extent to which this is appropriate. / Private Law / LL.D.

The thesis analyses selected aspects of domain-name law, mainly from the perspective of trade-mark law. It discusses the evolution of the domain-name system and how it operates as background to a more detailed discussion of the theoretical classification of domain names. The thesis then examines the interplay between trade marks and domain names, and the resolution of domain-name disputes resulting from the inherent tension between these two systems. The main principles of domain-name dispute resolution are identified by way of an analysis of the panel decisions handed down in terms of the international Uniform Dispute Resolution Policy (UDRP) and the South African domain name dispute resolution regulations. This analysis always addresses, too, the extent to which national trade-mark law principles (with reference to the laws of South Africa, the United Kingdom, and the United States of America) apply, and the extent to which this is appropriate. / Private Law / LL.D.

My thesis examines how metaphors of globalization shape the global governance of the Internet. I consider how, in a short span of time, discussions of the Internet’s globalizing potential have gone from the optimism of the global village to the penchant of the global marketplace to the anxiety of the global war on terror. Building upon Rorty’s theory of metaphors and Foucault’s notion of productive power, I investigate how the shifts in these prevailing metaphors have produced and legitimated different frameworks of global governance. In considering how these patterns of governance have been shaped in the context of a familiar example of globalization, I demonstrate that globalization has an important discursive dimension that works as a constitutive force – not only in Internet governance, but in global governance more generally. By illuminating globalization’s discursive dimensions, this thesis makes an original theoretical contribution to the study of globalization and global governance. It demonstrates that globalization is more than a set of empirical flows: equally important, globalization exists as a set of discourses that reconstitute political legitimacy in more ‘global’ terms. This recasts the conventional understanding of global governance: rather than a response to the challenges posed by the empirical transcendence of territorial borders or the visible proliferation of non-state actors, the aims, institutions and policies of global governance are shaped and enabled by discourses of globalization, and evolve as these discourses change. In short, this thesis provides further insight into globalization’s transformations of state-based political order. It links these transformations to the discursive processes by which systems of global governance are produced and legitimated as sites of power and authority.

A domain name is a unique alphanumeric designation that facilitates reference to sets of numbers which actually locate a particular computer on the Internet. Domain names are a fundamental part of the Internet's user interface. Improving the usability of the Internet depends upon effective domain name policy. This study is intended to contribute to improvement in Internet usability for the end users of domain names. Benefits of more usable domain names include: higher sales, customer satisfaction and productivity, and reduced support costs. Domain name policies worldwide vary considerably. Consequently, end users are inconvenienced by contradictory domain name policies, diminishing the predictability of an entity's domain name, and thus decreasing usability for end users. The study objective was to develop criteria with which policy makers can evaluate their domain name policies, in order to improve the usability of domain names for end users. The main research question posed was: What are the criteria for an effective domain name policy? The research methodology included a literature review, domain name policy examination and an ethnographic narrative. The literature review found existing research examining either domain names or usability in isolation. However, research examining the intersection of the two is scarce. The existing research describes domain names as part of the web user interface. In practical terms, this is about how people use domain names to access web sites, email addresses and other Internet resources. It was established that the predictability (and thus usability) of domain names relies on effective domain name policy. The non-standardised and widely delegated process of domain name policy development leads to unpredictable and inconsistent domain names. The narrative recollection presented the researcher's inside perspective on the domain name industry, with a focus on domain name usability. The researcher provided first-hand insights into the evolution of the industry and policy development process, from Australian and international perspectives. To address the problem of poor domain name usability, a framework for domain name policy evaluation is proposed. The framework extends the current research that treats domain names as a user interface by proposing criteria which address usability concerns. The framework allows policy makers to critically assess domain name policies with end users in mind. Examples of the criteria include: understanding who are its intended and untended users, and whether it's consistent with other domain names. The framework has the potential to set an international standard for the critical evaluation of domain name policy, and become the basis for further research. This study was developed from the researcher's perspective as a participant in the domain name industry. A secondary lens regarding the usability of domain names was then applied. This study has only scraped the surface in terms of how the research fields of domain names and usability may be considered together. The research methodology for this study was primarily qualitative and interpretive. A quantitative study of domain name policies globally could provide further insight into areas including: the differences in second level country code domain names, and language implications of domain names.