Why the Tort of Misappropriation of Personality?
The tort of misappropriation of personality has never been used in the domain name dispute context in Canada before. It is therefore instructive to examine why counsel for Stelmach chose to base their legal argument on this tort rather than on one of the more conventional domain name dispute processes. Domain name disputes in Canada are governed by the CIRA Domain Name Dispute Resolution Procedure (CDRP).[10] It is beyond the scope of this article to examine the provisions of the CDRP in detail but, essentially, a complainant can bring a proceeding under the CDRP if: (a) “the Registrant’s dot-ca domain name is Confusingly Similar to a Mark” owned by the complainant, (b) “the Registrant has no legitimate interest in the domain name”, and (c) “the Registrant has registered the domain name in bad faith”.[11] According to s. 3.2 of the CDRP, a “Mark” can be either a trademark used in Canada “for the purpose of distinguishing the wares, services or business”, a trademark registered with the
