Legal Measures on Rules and Protection of Domain Name Registration

Abstract

This thesis is aimed to study and acquire a good understanding of the problems occurred with domain names in Thailand in relation to the rules and protection of domain name registration since Thai jurisdiction does not provide any law directly applicable to domain name registration. Consequently, the Trademark Act B.E. 2534 (1991) is applied to domain names on analogical basis as the closest legislation. Nonetheless, domain names are not trademarks, and conversely, trademarks are not domain names. This is due to the specific alphabetical and numerical nature of domain names, which means that it can be represented by way of arranging the alphabets and numbers. On the other hand, trademarks can be represented by its characteristics, shapes, lines and colors. Therefore, the rules and measures of the Trademark Act B.E. 2534 (1991) is not suitable for analogical application to domain names.

Nowadays, Thai law does not place importance on the problems with regard to domain names, thus the legislation directly governing domain names has not yet enacted so as protect and recognize the status of domain names. The existing registration rules on domain name registration are issued by private sectors which can be easily repealed, amended and revised. Furthermore, the lack of government agency, being responsible for registration of domain names and acting as an intermediary to control and lay down the relevant policies and guidelines, leads to several problems relating to the examination of domain name applicants’ good faith and the rules on domain name registration, i.e. the start of protection period available for domain name applicants including the determination of domain name registration fee which gives effect to the ownership in domain names. In reliance on their higher bargaining power, the private registrars arbitrarily increase the domain name registration fee as a condition to make the renewal of domain names valid.

According to the study, Thai law is silent on the legislation which directly governs domain names. Also, the existing law is not up-to-dated and suitable for the specific nature of domain names. It is difficult to control the registration of domain names and to protect the owners of domain names by applying other legislation. Accordingly, the author proposes that a law directly applicable to domain name registration be enacted, i.e. the domain name act, covering the rules and protection of domain name registration. Moreover, a government agency should be established in order to select a private sector to perform the function of domain name registration by tender.  In addition, the agency should lay down the policies which is retrospectively applied to the domain names registered prior to the enactment of proposed domain name act. In this regard, the principles and concepts under certain foreign laws, such as United States of America, Kingdom of Denmark and Republic of Finland law, should be adapted and form the basis for appropriate solution of the problems occurred in Thai jurisdiction.