UK: E-Commerce News - Hague Convention on Jurisdiction & Foreign Judgments, Whois System, On-line Privacy, ICANN .biz & .info Web Extensions

Last Updated: 30 July 2001

Hague Convention on Jurisdiction and Foreign Judgments

Delegates from 50 countries have been meeting in The Hague since 6 June 2001, with a view to formally negotiating the proposed Hague Convention on Jurisdiction and Foreign Judgments. The proposed treaty is intended to harmonise laws that apply in private cross border disputes, and seeks to deal with disputes involving intellectual property (including patents), libel and defamation. The treaty would require signatory countries to agree to enforce legal judgments which are entered in other signatory countries, as under the Brussels Convention (which only applies to EU countries). The negotiation of this convention has been on foot since the early 1990's and was overtaken by developments in international commerce during this period which were brought about by the growth of the Internet.

The concerns that have been raised by many nations which have been involved in the negotiations, and which are now seen as the major impediments to finalisation of the convention, are that signatories may be required to enforce foreign judgments which would conflict with their local laws. The USA has raised concerns for example, about defamation and libel judgments being required to be enforced in the USA, which would not have been obtained in the USA due to its first amendment and free speech protections. There are also concerns that e-commerce will be undermined if these issues are not properly addressed, as companies engaging in e-commerce over the Internet may decide to block access to residents of certain countries due to local laws.

The delegates are expected to conclude this round of negotiations within 2 weeks, and are expected to meet again in early 2002.

ICANN's study of the Internet domain name system's Whois system

The ICANN Domain Names Supporting Organisation (DNSO) is conducting a study of the Internet domain name system's Whois system. The Whois service is comprised of registrant's domain name registration information stored in the databases of either ICANN Accredited Registrars or at the registry of relevant country code domains or other generic top level domains. The registrant's domain name information is public information and is used to identify domain name registrants as well as the technical and administrative contacts associated with the domain name. The Whois system has a wider use and may be used for example, to identify the availability of a domain name, to identify and verify online merchants and so forth. The once centralised Whois system has been dispersed into the record systems of approximately 80 ICANN Accredited Registrars.

ICANN has recognised that the public disclosure of data about individuals' registrations raises serious privacy issues. According to one source for example, Verisign announced earlier this year that it would begin selling complete copies of its Whois database to direct marketing companies. To participate in the survey, visit http://www.icann.org/dnso/whois-survey-en-10jun01.htm. We will be following the results of the survey in coming editions of the Bulletin.

Drafters of the world’s first Cyber-Crime Treaty tighten provisions protecting on-line privacy

Drafters of the world’s first treaty against cyber-crime kneeled to pressure from the EU and other groups and tightened provisions protecting on-line privacy. The Council of Europe has amended the "Draft Convention on Cyber-crime" to ensure police respect privacy rights when they follow digital trails to fight on-line crimes such as hacking, spreading viruses, using stolen credit card numbers or defrauding banks. The Council was bombarded with complaints and position papers arguing that the draft text does not adequately address privacy concerns. As a result of this criticism, Article 15 has been amended to ensure that national laws of signatories respect privacy rights and other human rights pacts and that the treaty be subject to "judicial or other independent supervision".

The treaty, which has been hotly debated since its draft text became public last year, grants police wide powers to pursue suspected cyber-criminals. Critics say that many of the powers go beyond what is legal in some Council member states. The treaty will clarify how police in one country can call on their counterparts abroad to collect data traffic on a foreign hacker and even have them arrested and extradited to serve a jail sentence for breaking into a computer system. It also provides for international co-operation to fight against purveyors of child pornography, copyright violators and people who aid and abet others to commit online crime.

Drafters ignored a request from Internet Service Providers (ISPs) for fewer costly requirements on preserving data that could be related to a crime. The text still requires ISPs to store such data for at least 60 days after police request it.

The draft treaty, which may become the world’s standard in the fight against on-line crime, will be submitted to the Council of Europe for adoption in September 2001. It will then be ratified by member states and observers over the next year or so.

The draft text is available at http://convention.coe.int

ICANN finalised accreditation agreements for the .biz and .info web extensions

In IT Bulletin 5.0 we reported that The Internet Corporation for Assigned Names and Numbers (ICANN) announced seven new top level domains (TLDs) - ".biz", ".name", ".info", ".pro", ".museum", "aero" and ".coop".

On 15th May 2001, ICANN finalised accreditation agreements with the Registries that will be responsible for the .biz and .info TLDs. The relevant registers are not yet open for applications. However, prior to the launch, brand owners are being given the opportunity to protect their IP rights against potential infringement and cybersquatters. It is also possible to pre-request domain names, but this is a service is being offered by the various different registrars and not the central Registry. It is important not to confuse the two different procedures.

.BIZ

Protecting an IP Right

Until 9th July 2001, IP owners may submit an "IP Claim Form" directly to NeuLevel, the Registry for the .biz TLD, or via a registrar, such as Network Solutions. An IP Claim Form may be filed by the owner of a registered trade mark, a pending application or by the owner of an unregistered trade mark protected by common law rights (such as, passing off). The forms will be held on a central database and when subsequent applications for domain names are made, these will be checked against the trade mark rights claimed. However, it is important to note that the IP Claim Form will not prevent the domain name from being registered by another party. NeuLevel will notify both the applicant of the asserted IP claim, and the IP owner of the domain name application. After notification, the applicant must confirm whether or not he wishes to proceed with the application. Where two applicants seek the same domain name both have an equal chance of securing the name as they are allocated by the Registry upon a random basis.

Advantages of the IP Claim Form

An automatic 30 day hold will be put on domain name registrations where a conflicting IP Claim Form has been submitted. This gives the IP owner time to act before the address goes live on the register. In particular, IP owners who have filed IP Claim Forms before the deadline are entitled to use a special streamlined dispute resolution procedure (called STOP) which is more time-sensitive and, it is claimed, less costly than resolving the dispute through the standard ICANN dispute resolution procedure or the Courts.

Pre-requesting domain names

Making an IP claim does not include an application to register the relevant domain name. A separate application must be made. Pre-registration or reservation of names is not possible. Some registrars, such as Network Solutions, are taking non-binding requests for domain names. However, there is no central registry to check against to ensure that no one else has requested the same name. Although there is no guarantee of success, it is sensible to file a request as early as possible (perhaps even with multiple registrars), given that registrations will be processed randomly. Generally, fees will only be incurred upon completion of a successful registration. Clients should beware organisations promising "guaranteed" success in early registration, especially where upfront fees are demanded.

Action timetable

  • IP Claim Forms to be submitted before 9th July, $90 fee (charged by NeuLevel).
  • Domain names can be pre-requested through to 25th September 2001 (Certain registrars may levy a fee).
  • Between 26th September and 1st October, domain name requests will be fed to NeuLevel, the central registry for processing.
  • The .biz registry goes live on 1st October and after this date NeuLevel can accept domain name applications direct, on a first come first served basis. Applications will no longer be checked against the IP claims. After that, any disputes must be resolved using the standard ICANN dispute resolution procedure.

.INFO

Afilias is the Registry accredited to launch the .info TLD. Between late June to late July it will implement a "Sunrise" registration program. This is designed to afford owners of valid and enforceable trade or service mark registrations an opportunity to apply early to register the corresponding .info domain name. All trade marks must have been registered prior to 2nd October 2000. Businesses with newly registered marks will therefore not be afforded this privilege. A special dispute resolution procedure, known as the "Sunrise Challenge", will be available for qualifying IP owners in respect of IP disputes which arise.

Multiple requests for the same domain name will be processed on a random "round robin" basis, between the different registrars feeding applications to the central registry. The .info domain names are expected to go live in August 2001.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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