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Barcelona Domain Name Ruling Draws Fire

Note: No Allegations have been proven in Court

John Partridge
The Globe and Mail

Tuesday, August 15, 2000

>>>>> A precedent-setting international ruling could make thousands of privately owned Internet addresses based on city or other place names easy pickings for Web-savvy governments around the world.

An arbitrator acting under a controversial new international system for resolving domain name disputes and combatting so-called "cybersquatting" has stripped a company controlled by a Spanish woman and her husband of http://www.barcelona.com ,a moniker she registered four years ago for a tourist site, and awarded it to the city of Barcelona.

The ruling is believed to be the first involving a geographic name since the new dispute resolution system was launched Jan. 1 by the Internet Corporation for Assigned Names & Numbers (ICANN).

Some observers figure that if Canadian governments start to pursue Internet strategies more aggressively, the decision could have implications for several domain names owned by well-established players.

These include http://www.canada.com ,controlled by newspaper publisher Southam Inc.; http://www.toronto.com ,controlled by BellActiMedia, Torstar Corp. and Ticketmaster Online-City Search Inc.; and http://www.alberta.com and several similar addresses controlled by telecommunications and Internet service provider Telus Corp.

In the Barcelona ruling, reportedly being appealed to the U.S. courts, arbitrator Marino Porzio said the domain name, controlled by Concepcio Riera and her husband Juan Noguerras Cobo through a U.S. company they set up in May, contravened three key rules established by the ICANN:

The name was "confusingly similar" to trademarks held by Barcelona's city council.

The city had "better rights" and "more legitimate interests" in the name than Ms. Reira and Mr. Noguerras Cobo.

The couple was using the name in "bad faith" because they had registered it in part to prevent Barcelona from doing so and because they eventually planned to try to obtain some sort of a payment from the city.

However, University of Ottawa law professor Michael Geist, who specializes in Internet and other intellectual property law, dismissed the ruling as wrong-headed. "It's a dangerous, dangerous precedent," he said. "It's certainly possible [that] other arbitrators will increasingly rely on this decision."

Prof. Geist fears the ruling may open the door to domain name grabs by governments at any level around the world -- even when the current owners are not cybersquatters -- that is, people who register domain names based on trademarks in the hope of reselling them for big bucks down the road to the trademark holders.

His main objection is that the ".com" designation for Web sites is short for "commercial," and should therefore be restricted to commercial enterprises and kept "outside the realm of a particular city or country or state."

Governments already have their own designations, which include country and/or provincial components. For instance, the federal government's main Web site is http://www.canada.gc.ca , the Alberta government's is http://www.gov.ab.ca , and Toronto's is http://www.city.toronto.on.ca .

Like Prof. Geist, Bruce Annan, president of electronic media for Torstar Media Group, which owns 45 per cent of http://www.toronto.com ,dismissed the confusion argument in the Barcelona ruling. Growing familiarity with the Internet means "more and more of us [are] going to know that if we go to anything ending in .com, it's going to be a business, not the government."

Mr. Annan indicated he is not concerned that the Toronto government may be contemplating similar action against the Web site Torstar and its partners control. "I really doubt this is any kind of a precedent," he said.

However, he acknowledged that the ICANN dispute resolution system is still unfolding, and "it's still pretty chaotic out there."

One U.S. company whose ox could be gored if more major cities around the world go on the warpath is Mail.com Inc. of New York, an Internet e-mail service. Among the numerous domain names it owns are .coms for such places as Tokyo, Singapore, Berlin, Rome, Paris and Spain's capital, Madrid.

Spokeswoman Holly Lehr said in an e-mail yesterday that the company is familiar with the Barcelona decision, but that the facts in that dispute are "unique" and "not applicable to any of Mail.com's city domain names."

However, she also noted that rulings under the ICANN dispute resolution system can be reviewed in court and said a "timely court action" by the owners of http://www.barcelona.com will "stay the ICANN decision."

A report from Barcelona Sunday said this is what Ms. Riera and Mr. Noguerras Cobo have in mind. The Spanish couple now own the domain name through Barcelona.com Inc. of New York, and the company said it will appeal the ruling to the U.S. courts because it figures it stands a better chance of success there.


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