Say you’re a Canadian who decides one day that you’re going to bite the bullet, and establish a personal online presence. And you want to start by getting a web address – a first-name/last-name/dot-c-a domain name, like robcottingham.ca.

But when you try to register, you discover it’s already taken… and not by someone else who shares your name. Instead, some third party is deliberately using your name for their own purposes.

What recourse do you have?

Not a lot, as several federal politicians are suddenly discovering.

As Prof. Geist reported a week ago, MPs Don Boudria, David McGuinty and several others found that their names have been hijacked by an anti-gay group. Go to www.DonBoudria.ca, and you’ll see a site attacking him for supporting equal marriage legislation.

This is by no means the first time that this has happened. (See, for instance, the discussion Crawford Killian and I had about NDP candidate Cathy Pinsent’s domain name, which has been scooped up by a squatter.) Oddly, the policy governing dot-c-a domain names gives individuals nearly no rights over their own names. Trademarks, yes. Individual names, no.

Here’s Prof. Geist’s take on it:

A complainant must prove three elements under the CDRP in order to obtain a transfer of the domain: (i) that the complainant has trademark or trade name rights in the contested name; (ii) that the domain name was registered in bad faith; and (iii) that the registrant does not have a legitimate interest in the domain.

In this case, all three elements would be problematic. First, it is doubtful that MPs enjoy trademark or trade name rights in their names. Although Anne McLellan was successful in an ICANN UDRP case in 2000, that decision has faced criticism since politicians’ personal names do not typically rise to the level of trademark status.

Second, proving bad faith registration would also pose a challenge since the CDRP includes an exhaustive short list of what constitutes bad faith. Most of the criteria focus on attempts to profit from the domain name, which is apparently not the motivation in this case.

Third, and most important, the Canadian policy would likely hold that the registrant has a legitimate interest in the domain name since the sites unquestionably feature good faith criticism despite their deceptive qualities.

There are good reasons for limiting the restrictions on domain name registration. In the bad old days, it was next to impossible to get any dot-c-a domain name outside a very narrow range of options. But at the very least, shouldn’t individuals have the same level of protection that (mostly corporate) trademark holders receive?

Update: I believe I am now officially the last person in the blogospheriverse to comment on Rick Mercer’s new blog, in which he pillories Jason Kenney – who had suggested that Boudria was “a clueless n00b” while calling himself “totally l33t” – and, yes, hijacks www.jasonkenney.org, which Mercer has redirected to the Marxist-Leninist Party.

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