Cybersquatters and Branding Technology

A. Idea!

Developing countries, including Indonesia, share with developed countries the rationale in protection Intellectual Property Rights (IPR) although they might be conflicting on the extent of the protection guaranteed as it is often developing countries which offer the market while developed countries hold the rights. It is however in the interest of, notably, Indonesia to ensure a proper protection of IPR were it only in order to bargain a better access of its own products and services to markets abroad.

B. Trademark branding vs. Internet branding

The law struggles to keep the pace of Information and Communication Technologies (ICT), such as the development of the use of domain names for branding on the Internet. The regulation of trademark branding on the market-place and domain name branding on the Internet have not been synergized yet, allowing unfair competition in the loopholes. Under Indonesian Trademark Law, the use of a trademark as a domain name is not protected unless it concerns a notorious trademark and both have been registered for the same kind of goods.

C. Media

Unlike trademark, patent and industrial design which are administered and controlled by the Government of the respective country, no Government in the world has absolute control over the Media and Forum of ICT products. National Registry Administrators are private institutions authorized to assign Internet Protocol Numbers (IPN) under the Domain Name Service (DNS) maintained by the Internet Corporation (Internic), another private institution. Besides, Unrestricted Domains are very broad.

D. Forum

Similarly, the World Intellectual Property Organization (WIPO), which, through its Arbitration and Mediation Center (WIPO Center) handles DN disputes settlement between the owner of IPR and DN infringers – the cybersquatters – does not link up to a specific country. While the WIPO Center is still in the process of asserting its stature, at this stage no Mark Law in the world is ready to prevent or solve the ramifications of cybersquatters as yet.

E. Enforcement

The organization of the Media and of the Forum does not guarantee that sanctions are effectively and equally enforceable. Cancellation of a registration by a Registry Administrator is easily enforceable. However, other types of sanctions such as compensation would depend heavily on local Courts which in many jurisdictions is still a big question mark. As a consequence, an infringer through DNS may not have much to lose.