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LEGAL REPORT: INTELLECTUAL PROPERTY desist letter, for example, because the domain name contains a third- party trademark is, well, how do I know who I'm sending it to?" — ERIC MACRAMALLA, GOWLING LAFLEUR HENDERSON LLP they received it, is at stake. He says the new policy applies only to individuals, who will have their personal contact in- formation concealed. For context, Giddens adds that CIRA registered its one-millionth domain name in April. Of these, the estimate is that 60 per cent are owned by individu- als, and it is not unusual for an individ- ual to have huge portfolios of domain names. He says the majority of arbitra- tion cases over the last few years have been filed against individuals, rather than companies. Giddens says the new policy will make it much more difficult for trademark and brand owners to effectively police their rights and to know how perceived infringements on their rights should be dealt with. One concern, says Colombo, is how lawyers would get this informa- tion from CIRA in the context of a law- suit. Would they, for example, have to be members of CIRA? "[There] should be some means, even through CIRA, of contacting the person," he says. Colombo says he has a lot of clients who routinely have to deal with cybers- quatters. These clients will want to know who to send a complaint letter to, and now won't be able to get the informa- tion. "Their jobs will become very dif- ficult, if not impossible, unless there are changes," he says. Following its second public consulta- tion, CIRA proposed an administrative process in which it would pass corre- spondence from interested parties to domain-name registrants but would not guarantee that messages would be read or responded to. Nearly 81 per cent of those consulted agreed with the pro- posed process. Macramalla says after the policy goes into effect in June a lawyer will have to go to court and seek a court order re- quiring CIRA to disclose the registrant's information. "It may deter some brand www. C ANADIAN mag.com M AY 2008 49 owners from taking action, or it will just take a lot longer," he says. He estimates the cost of obtaining an order to have an identity revealed could run anywhere from $5,000 to $15,000, and the process could take up to two or three months. "We have a time issue. We have a cost issue. And, with the number of judges across the street, it may not be in the interest of judicial economy to have this type of policy in place," he says. At the same time, CIRA has to do a balancing act between privacy legisla- tion and the interests of stakeholders, he says. "I think, from the perspective of a brand owner . . . it complicates things a little bit and it takes what could be fairly straightforward administrative matters and elevates them to more complicated matters that will take longer to resolve and will be more expensive to resolve," he says. One worst-case scenario could involve a three-month wait, only to find out that the domain name owner has every right to register a particular name. "Is this pol- icy ideal for brand owners? No, it is ad- verse to their interests. At the same time, CIRA felt it had to do something, and I can understand that, based upon the privacy legislation," says Macramalla. Giddens also says there may now be situations where trademark owners may have to commence CIRA's dispute-res- olution proceedings against registrants and will only be given information as to "The issue for a trademark lawyer who wants to issue a cease-and- IP Strategies Built to Last