Why it will soon be harder to find out
Right now, someone is operating a website called [name-of-your-company-or-product-here] sucks.ca. Someone else has registered the name of a dot-ca website that is deceptively similar to your trade-mark. Still another person has anonymously published defamatory statements about you or your company on a dot-ca website. How do you identify the perpetrator so that you can take action?
In the past, a simple WHOIS search would yield the name and other co-ordinates of the person to whom the dot-ca website is registered. This information could be used to locate the person responsible for the website and, if necessary, take action against him or her.
Canadian privacy laws have changed all that. As of June 10, 2008 it will be extremely difficult to identify the registrants of dot-ca websites.
Privacy versus Accountability
As of June 10, 2008, a WHOIS search performed on a dot-ca domain name registered to an individual will only return limited technical information including the date the site was registered and the date the registration expires. Created in response to Canadian privacy legislation, the purpose of CIRA's new policy is to protect the privacy rights of those who register dot-ca websites. The policy does not apply to domain names registered by corporations.
In shielding the names and addresses of domain registrants, however, the new policy will frustrate those who want to protect their rights against cybersquatters and other internet infringers. The policy will make it difficult to identify and contact prepetrators, as well as to prove that such sites were registered in "bad faith".
What Can You Do?
CIRA recognizes that the new policy will create problems for those who have complaints to make about dot-ca websites that infringe their intellectual property rights or are offensive for other reasons. To address this, CIRA has made changes to its Dispute Resolution Policy Rules. The Dispute Resolution Policy is used by the owners of intellectual property to have domain names that were improperly registered by someone else transferred to them.
The new rules make two significant changes to the way CIRA handles disputes between website registrants and third parties: (i) it implements an administrative system to pass correspondence between interested third parties and website operators; and (ii) it grants a complainant new rights to provide supplemental evidence that a website was registered in bad faith.
Interested Party Contact
New Rights Regarding Evidence of Bad Faith Registrations
Previously, complainants had no right to make further submissions to a dispute resolution panel after filing their initial complaints. Under the new rules, complainants may now do so once the registrant's identity has been disclosed. This will allow complainants to submit evidence to establish that the registrant is operating in "bad faith".
Indeed, these new rules will provide the dot-ca domain with a privacy "advantage" over other domains (such as the .com, .org and .net domains) who are unaffected by these changes. The dot-ca domain will accordingly become even more attractive to cybersquatters and operators of gripe sites. For those who want to misuse someone else's trade-mark or bash a product or company anonymously, Canada will be the place to do so.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2008 McMillan LLP