Appendix A – DNRC Comments to WIPO’s RFC-1

[In the comments below, DNRC and NETACTION contest the authority of WIPO to undertake aprocess to create rules for all domain name/trademark conflicts and at the same time to cloakitself in the mantle of the White Paper.  DNRC notes that the White Paper expressly withheldauthority from WIPO to conduct such a broad proceeding because it was the consensus of theInternet community that WIPO had a bias for its constituency of large trademark holders and thatpast attempts by WIPO to exert authority over trademark/domain name disputes through the ACPPanels and CORE proposals had been rejected by the Internet community and were the subject ofrepeated criticisms to the US Government.  We include only the sections of DNRC’s commentsrelevant to this point below.] 

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August 24, 1998
Mr. Christopher Gibson
World Intellectual Property Organization ("WIPO")
34 chemin des Colombettes
P.O. Box 181211 
Geneva 20
Switzerland
Re: Request for Comments on Terms of Reference, Procedures and Timetable for the WIPOInternet Domain Name Process - RFC-1
Dear Mr. Gibson: 
The Domain Name Rights Coalition (DNRC), a public interest group representing the interests ofentrepreneurs, small businesses and individuals in Internet policies and governance, together withNetAction, an Internet-based grassroots furthering use of the Internet as a tool for communityorganizing, outreach, and advocacy, hereby submit these comments in response to RFC-1.
DNRC has been a long-time participant in domain name/trademark matters. Our experienceincludes participation in the September 1997 Consultative Meeting on Domain Names andTrademarks at WIPO, appearance before the U.S. House of Representatives Subcommittee onTelecommunications on June 10, involvement on the Steering Committee of the InternationalForum on the White Paper, and participation in proceedings before the U.S. Department ofCommerce on domain name issues. 
I. Introduction:
The comments below address our concerns regarding the draft terms of reference, thebackground information section and the panel of experts. We commend WIPO for holding around of comments on the language and scope of the proceeding. 
II. Procedural matter:
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III. Draft Terms of Reference. 
A. Uniform Approach to Resolving Domain Name Disputes
We are very surprised to find the section "Uniform Approach to Resolving Domain NameDisputes" in this document. Although this is an area of great concern to WIPO members, it is anarea entrusted to the New Entity and not to WIPO by the White Paper. Through the conferencesorganized by the International Forum on the White Paper, recently convening in Reston,Virginia, Geneva, Singapore, and Buenos Aires, participants from the diverse InternetCommunity, including Internet Service Providers, Internet name registries, Internet backboneproviders, trademark associations, and domain name associations have actively debated whethera single uniform dispute resolution mechanism should be adopted by the New Entity. Sometrademark owners actively support such uniformity; many other participants to this process donot. There is agreement that this issue is one delegated by the White Paper to the New Entity andthat it is the New Entity which must establish a procedure for evaluating it. 
As a participant in the Geneva IFWP Conference, a close reader of the White Paper, and anactive monitor of Internet Governance issues, WIPO is certainly aware of the IFWP Process, andthe division of labor created by the White Paper.
We urge WIPO not to start a session in parallel to that of the IFWP on issues reserved for theNew Entity because: 
1) It is duplicative of efforts taking place worldwide by large and small, technical andnontechnical, access-oriented and content-oriented Internet companies, organizations, publicinterest groups and leaders worldwide. We need one process, not two.
2) WIPO will not be viewed as an impartial party on this point. Under the IAHC/CORE/POCprocess, WIPO undertook to create and run a uniform domain name dispute policy. This disputepolicy, called the Administrative Challenge Panels, was not accepted by the member countries ofWIPO, or by the Internet Community. The White Paper process has replaced theIAHC/CORE/POC process, and the Internet community is earnestly building a New Entity tohandle the technical and policy details of this proceeding. WIPO has been cast as a player - anexpert player -- by the White Paper. This role will be assured if WIPO respects the work alreadybeing done and the limits of the White Paper request. 
3) Creating a uniform dispute policy for all domain name/trademark conflicts is specifically anarea not assigned to WIPO in this proceeding. The White Paper states that WIPO should not getinvolved in "conflicts between trademark holders with legitimate competing rights."Accordingly, it was not within the vision of the White Paper that WIPO would undertake in thisproceeding to look at conflicts of legitimate users wanting the same string of characters -including the common conflict of noncommercial and trademark users interested in the samebasic words. Since the uniform dispute policy proposed by WIPO in this document is not limitedto cyberpiracy, it should be revised to narrow its scope to cyberpiracy. 
4) The worldwide Internet Community does not have the time or energy to participate in twoparallel, overlapping processes. This group of busy organizations and businesses is alreadydevoting tremendous amounts of time to questions of conflicts and dispute resolution- though themedium accepted by the Internet community and the process mandated by the U.S. Government.WIPO should respect the current proceedings and limit its input to the specific areas assigned bythe White Paper. 
B. Cyberpiracy 
Domain Name Rights Coalition and NetAction request that WIPO revise this section, in keepingwith the White Paper to read A Uniform Approach to Resolving Trademark/Domain NameDisputes Involving Cyberpiracy (as per the White Paper). 
The topic of cyberpiracy was specifically delegated to WIPO in the White Paper. Further,soliciting comments on this topic could be very useful for the Internet community. Werecommend starting with the question: What is cyberpiracy? How widespread is this problem?We advise against assuming answers to this question, and instead, openly requesting andcollecting information about the range of hoarding and warehousing problems that people allegeare taking place. If WIPO asks this question in an impartial manner, it may help the Internet bycollecting information about this point. However, to make the data more usable, the questionmust not be skewed upfront towards alleged trademark hoarding.
Further, to be fair, the questions in this section must include: Do you think the problemsidentified by the commenter would be improved by adoption of additional top level domains?Such a question will help the commenter focus on whether the intent of the hoarder is directedtoward an particular person or company, or rather an economic arbitrage opportunity separate andapart from intellectual property intents.
In drafting these questions, we urge WIPO to call upon Professor Milton Mueller of SyracuseUniversity. Professor Mueller has drafted many surveys and studies and could help WIPO toremove the bias that we believe is unintentionally imbedded in many of the questions and muchof the background material.
C. Dispute Prevention. 
As discussed above, this dispute prevention section involves matters not raised by the WhitePaper as part of the WIPO study. DNRC requests that it be removed as part of the WIPO WhitePaper proceeding. We note that the New Entity will be responsible for issues raised in thissection, including, what information should be collected, and that WIPO should certainlyparticipate in any proceedings the New Entity might hold.
We note that the White Paper specifically gave these issues to the New Entity to be determinedby an open and transparent process. These issues are being debated in the IFWP process andcertainly, WIPO should be a participant and key contributor. For all the reasons discussed above,however, WIPO should not be holding a separate and parallel proceeding issues on these sameissues in this WIPO White Paper Process.
D. Dispute Resolution
As with the other sections under Uniform Approach to Resolving Domain Name Disputes, thissection is duplicative of efforts of the IFWP and opens a proceeding assigned to the New Entityand not to WIPO. It is appropriate for WIPO to solicit its own members on this subject and thenparticipate in the process of the new Entity. We again respectfully submit, that the Internetcommunity should not be called upon to participate in two, parallel processes. Aside from thenarrow and as yet undefined issue of cyberpiracy, this area is outside the scope of the WIPOWhite Paper process.

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Thank you for this opportunity to comment. We look forward to continuing our participation inthis process. 
DOMAIN NAME RIGHTS COALITION
Kathryn A. Kleiman, Esq., General Counsel 
Mikki Barry, Esq., President
NETACTION
Audrie Krause, Executive Director