This dissertation stems from the need to expose disputes among domain names and trademarks that I experienced since 1992 during my 15 years as an intellectual property consultant in NIC-Mexico, an organization in charge of managing domain names ending in '.mx'. During this time, I was witness to the exponential increase in the use of domain names, originating from the advances in technology and electronic communications in general. In the particular case of Mexico with the signing of North American Free Trade Agreement with the United States and Canada that created a new international market where trademark protection and domain regulation became necessary Domain names are an integral part of the Internet system. They work as a group of addresses that Internet users apply in order to access the network. Each domain, as an independent address, is composed of letters, numbers, phrases, names and other alphanumeric combinations. How those letters, numbers, phrases, and other alphanumeric combinations are managed, how do they conflict in relation with intellectual property and how this conflicts must be resolved are the subjects upon which this dissertation is focused thru a comparative analysis of the Country Code Top Level Domain (ccTLD) or Network Information Centers (NIC's) of Mexico, Japan, France, Spain and the United Sates---the basic building blocks of the domain system Currently, there is no specific rule as to how ccTLDs should be administrated or procedures that guarantee the participation of national authorities in its operations. I suggest that the management of DNS should be operated by exclusively private parties in each of the countries or territories where ccTLD are created in order to assure accuracy, stability, security, flexibility and regular adjustments to new technologies that are complicated to accomplish by public management. I believe that national authorities must regulate the generic forms of operation of the ccTLD and not manage it, and in order to guarantee presence in its operation, they should stimulate the creation of Advisory Committees integrated by personalities of the Internet Community and have an active participation as another member rather than an authority in order to know the needs and expectations of the Internet community in relation to the ccTLD operations This dissertation will also argue a need for within each ccTLD for regulation of domain names from its lately association with intellectual property rights (limited to trademarks, copyrights and unfair competition) and the role that national governments must take in relation to legislate over domain names. There are several international institutions as the World Intellectual Property Organization that have presented recommendations about how domain names should be treated in relation to intellectual property that are been follow by national authorities, but only the United States and Spain has included the concept of domain name in its legislation that describe to users their rights and obligations and gives guidance to courts to assist the parties in how to apply intellectual property laws to the regulation of domains. The cases of United States with the Anti-Cybersquatting Consumer Protection Act (ACPA) and the National Plan for Internet Domain Names of Spain and the suffix .es , 8902 ORDEN ITC/1542/2005 of Spain should, this dissertation argues, be followed by other national governments, although I argue that future legislation should take into consideration not only trademark-related domain names, but also the connection of domain names to unfair competition and copyright laws Finally, this dissertation asks, what is, if any, the best legal or alternative procedure recommended for the resolution of disputes between domains and intellectual property rights? In the case of Spain and the U.S., the legislation on domains was created precisely to solve in the courts any dispute stemming from the use of domains in connection with the intellectual property. Nevertheless, such legislation does not block Internet users from using alternative means to resolve disputes. Those alternative means are cost and time efficient, presenting an interesting option for those people that only wish to cancel or transfer the domain name rather than file a suit for compensatory damages and loss, actions that are exclusive of the judicial procedure / acase@tulane.edu
| Identifer | oai:union.ndltd.org:TULANE/oai:http://digitallibrary.tulane.edu/:tulane_26379 |
| Date | January 2008 |
| Contributors | Flores, Arturo Azuara (Author), Townsend-Gard, Elizabeth (Thesis advisor) |
| Publisher | Tulane University |
| Source Sets | Tulane University |
| Language | English |
| Detected Language | English |
| Rights | Access requires a license to the Dissertations and Theses (ProQuest) database., Copyright is in accordance with U.S. Copyright law |
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