상표 사후 위임 분쟁해결절차(PDDRP)와 미국 상표법상 사이버스쿼팅의 기여책임에 관한 연구

On June 20, 2011, the Internet Corporation for Assigned Names and Numbers (ICANN) approved the final version of the new generic top-level domain (gTLD) Applicant Guidebook at the ICANN meeting in Singapore. The introduction of the new gTLD program is expected to expand consumer choices and provide more opportunities for companies, but at the same time it could lead to increased trademark infringement through cybersquatting. Trademark Post-Delegation Dispute Resolution Procedure (PDDRP) is a part of the new dispute resolution mechanisms proposed by ICANN to resolve cybersquatting disputes. The new gTLD registry operator is required to submit to the mandatory administrative proceeding commenced by trademark holders and implement the decisions made according to the PDDRP. Under the PDDRP, the registry operator is liable for the registration and use of the domain name if the registry operator engages in affirmative conduct to cause or materially contribute to the gTLD infringing the complainant's trademark. The registry operator is also liable if there is the registry operator's affirmative conduct to engage in a substantial pattern or practice of specific bad faith intent to profit from the sale of trademark infringing domain names and the systematic registration of domain names within the gTLD that are infringing the complainant's trademark. The PDDRP denies the registry operator's liability when the registry operator has knowledge of the existence of infringing domain names within its registry or it does not take any action necessary to monitor the registrations. The U.S. Supreme Court held that if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. Where the defendant supplies the infringer with a service, courts consider the extent of control exercised by the defendant over the third party's means of infringement. The PDDRP does not hold the registry operator responsible for trademark infringement if it knowingly permitted, or could not have reasonably been unaware of infringing domain names within its registry. The PDDRP does not encompass potential instances of willful blindness in the management of new gTLDs and it seriously undermines the PDDRP's intended effectiveness. On the other hand, trademark holders carry a relatively heavy burden of proof because a complainant is required to prove the requirements under PDDRP by clear and convincing evidence. In order to achieve its purpose, PDDRP should be implemented to ensure a balance between the protection of trademark holder's right and the fair and effective management of new gTLDs.