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Marta Moreira Dias
.PT Board of Directors
18-10-2021
The power of being online
Between 1901 and 2021, 102 Nobel Peace Prizes were awarded. In this latest edition, the laureates were two journalists who stood out for their serious and particularly challenging work fighting in their respective countries for freedom of expression. This, with a consensual resource: the online. 

Let's focus on this. The Internet was born free, neutral, open and without borders, and has remained so. Or has it? The right to freedom of expression has always been assumed as one of the corollaries of the power that the online supposedly presents us with. This statement is not limited to the content with which, with some freedom and recourse to more or less sophisticated and professional digital tools, we eloquently stuff our websites. Since 2016, ICANN1 itself has been reviewing the conditions for the allocation and registration of new top-level domains, having even created a working group whose singular purpose is to analyze and ensure that, in the registration process, the social, economic and cultural impacts of human rights, in general, and freedom of expression, in particular, will be considered. In fact, one of the recommendations already issued and made public is related to the relevance of ensuring the compatibility of the right to freedom of expression of the gTLD applicant with other legitimate interests that may conflict, such as trademarks or other intellectual property rights. 

Still in this context, two school cases come to mind: mirapex.sucks and bioderma.sucks, which, following two complaints filed with the UDRP2 by the respective trademark holders, had opposite outcomes. 
They had in common the owner, the gTLD chosen for their registration3 and the fact that they coincided with third party trademarks. 
And the decision? In the case of bioderma.sucks, the transfer of domain ownership to the trademark holder was ordered. In mirapex.sucks, it was decided to maintain ownership in the sphere of the initial registrant.

The two cases have countless contours and nuances of their own. This is not the time to evaluate the line of reasoning that led to the order of transfer of domain ownership - in the case of bioderma.sucks - to the trademark holder in one case, and the maintenance of ownership by the initial registrant in the other. Here, it is only important for us to explore the grounds of the latter decision. Since the court found that neither the evidence produced in the case by the plaintiff (trademark owner) nor that produced by the defendant (registrant) were solid, then the basis of the decision rested on the positive valuation of the registrant's right to freedom of expression. What seems relevant to us here, regardless of how good the decision is, is the fact that we have witnessed an expansion of the scope of protection and the greater weight of this right compared to others, which are, or were, usually given valuations above what we would ideally call the peaceful coexistence of rights.

For those who daily analyze domain names or, as a result of a competence that derives from the law or from an administrative decision, verify online content, the task is inglorious. The protection of legal interests and goods such as security, public order and health, and the trust that we all crave when we go online, can easily collide with other rights enshrined in the Constitution. To know how to enforce them is, indeed, only for some. 



1 ICANN - Internet Corporation for Assigned Names and Numbers. https://www.icann.org/
2 UDRP - Uniform Domain-Name Dispute-Resolution Policy 
3 .suck is a gTLD (generic top level domain) that went live in June 2015.



Please note: the articles on this blog may not convey the opinion of .PT, but of its author.
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