New policy limits disclosure of information through WHOIS directory
The WHOIS is the database of domain names and relevant contact information maintained by all top-level domain registries. It lists the relevant registrant information for each domain name registration. Among other things, the WHOIS enables trademark owners to identify parties who have registered domain names that may be considered identical or confusingly similar to their trademarks. Further, in most domain name dispute resolution policies, one way in which a complainant can establish bad faith on the part of the registrant is to evidence a pattern of registration of domain names comprising the trademarks of others. For this purpose, it is necessary to have access to the WHOIS information.
The '.ca' WHOIS currently makes available registration information, including registrant names. Although it is not possible to search the WHOIS by registrant name, CIRA makes available a list of all '.ca' domain name registrations in the name of a registrant on request pursuant to its Registration Information Access Rules and Procedures. Among other things, the request must certify that it is made by or on behalf of a person who has rights in the trademark identified in the request and that the request is being made in good faith for the purpose of deciding whether to initiate a proceeding under the CIRA Domain Name Dispute Resolution Policy against the named registrant.
The proposed WHOIS policy stems from consultations commissioned by the Internet Corporation for Assigned Names and Numbers over the past year or so and CIRA's own consultation on the publication of registrants' information during 2004. The latter was initiated with a view to ensuring that CIRA's procedures comply with Canada's federal privacy legislation, the Personal Information Protection and Electronic Documents Act.
The new policy would provide (i) different rules for individual registrants than for other types of registrant, and (ii) a means to access unpublished information from CIRA in defined circumstances. For domain name registrations in the name of an individual, no information about the registrant, including his or her name, would be included in the WHOIS. For registrants other than individuals, all registration information collected by CIRA would be made accessible through the WHOIS, but registrants could request that this information not be disclosed. CIRA would have discretion to permit such a request. If the proposed policy is adopted, '.ca' registrants, especially individuals, would be entitled to more restrictive disclosure of information through the WHOIS than most other top-level domain registries.
There are arguments in favour of and against the proposed policy. The main reason advanced in favour of the new policy is that it will mean compliance with Canada's privacy legislation. The main argument against keeping contact details for individual registrants private, one that is likely to be supported by most trademark owners, is that it is necessary to make such information publicly available in order to hold registrants accountable.
Sheldon Burshtein, Blake Cassels & Graydon LLP, Toronto
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