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Joint Working Group for WIPO-2 Process Issues

Remarks of Jonathan Cohen, July 2004

(please note the full and final report of the committee is made up of this "Final" report of july 2004,and, the interim 1st report provided to the Board after the ICANN meeting in Rome in March 2004)

It has been a most interesting and edifying experience to Chair this Committee.I would like to thank Paul Twomey and the Board for this privilege.

I also wish to thank John Jeffrey for his able assitance and particularly wish to thank the many Committee members who gave of their time and energy and shared their ideas faithfully and patiently to help us fulfil our mission.

As you would expect with the Committee made up of people from very different backgrounds ,there was lively discussion on many subjects and there was no broad agreement or consensus on the main issue of accepting the recommendation of WIPO(GAC) to implement the changes to the UDRP set out in WIPO2.

There were about half the committee who generally opposed implementing WIPO2.

Those opposed held views ranging from

  1. "the UDRP is flawed...fix it first before amending or adding"
  2. "There is no support in International law for protecting country names in any manner or forum and ICANN does not and should not have the power to create what amounts to international law"
  3. "many trade marks for country names and the acronyms of IGOs are already registered in many countries legally and in keeping with both national law and international treaties (Paris Union)"
  4. "Denying access to the Courts is a fundamental (breach) change in the original bargain negotiated between the constituencies of the GNSO (DNSO)and the Board"
  5. "The GNSO has already said ..No"

On the question of implementation,those opposed generally still came up with ideas that were discussed and may merit further thought,namely

  1. A "reserve" list of country names whereby each country could 'reserve' a certain number of versions of its name in a certain number of languages
  2. Using current UDRP procedures (supra)
  3. Developing an entirely seperate UDRP for the purposes of WIPO2.It was suggested that the Arbitrators might need different training or background than those doing current UDRP where most are IP pratitioners

Those in favour of adopting WIPO2 believed strongly that so many governments (and the GAC) had approved this recommendation that it ought to move forward promptly and that it was not really the work of ICANN or its committee to question "whether" WIPO2 should be implemented But rather ,simply, "HOW". Nonetheless they participated fully in those discussions and gave cogent arguments in support of their position such as:

  1. There is no support in International law for the existing UDRP.ICANN simply came up with a set of rules through consultation with WIPO and the GNSO (DNSO) and incorporated them into its contracts.It can amend
    same if it chooses to do so as long as it does not 'break' national or international law.
  2. Arbitration is a long well established form of dispute resolution and in this case solves the problem of jurisdiction which in the case of Governments would be very tricky under a Court based Appeal system.
  3. The system is "bad faith" based and therefore is not an unfair interference with existing or future registrations of trade marks or domain names which happen to coincide with an IGO or country name (unless there is a reserve list which they generally do not approve)
  4. It is open to the Board to accept this recommendation despite the GNSO ,and, where it has a committment in its Charter to the GAC this is such a case where the importance of the matter requires the Board to make its decision without being bound by the GNSO position.
  5. This is a serious problem for many countries and needs to be addressed quickly just as domain name cybersquatting was originally dealt with using the existing UDRP.

The first(interim) report of this committee outlines in good detail the arguments/discussions on the Question of whether to implement the GAC recommendations contained in WIPO2.Following these remarks is a record of the discussions of the Committee on the Question of "How" to implement WIPO2 should the Board choose to do so.

CAUTION: For convenience sake I have tried above to loosely summarize some of the discussions and viewpoints of committee members but this is ABSOLUTELY NOT a substitute for reading the accurate transcription of the discussions which are in the 1st and 2nd Reports to the Board.

Chairs Personal Comments:

Throughout the discussions I have refrained from expressing my point of view on matters under review by the Committee.I will not now give my personal point of view, But, as an observer of the process I can give some "backboard" thoughts.

While some members are adamantly opposed to the implementation of WIPO2 ''my sense'' of many of those opposed was that given certain conditions it 'might' be 'bearable'.I sensed if current UDRP rules are maintained the opposition to WIPO2 becomes very faint.In second place would likely be a seperate UDRP where the rules etc can be worked out away from current UDRP. Third is a reserve list but many pointed out this has its own set of problems including "absolute exclusion" which can be unjust.

(I have decided after listening to the thoughts of the Committee on the matter to include as an Appendix to this report the proposal of one Committee member on the subject of implementation of WIPO2.It has received the support of several Committee members who are in favour of implementing WIPO2. However, I must caution that

  1. this proposal was never discussed or debated by the committee and is therefore NOT a proposal or work product of the Committee but rather that of one member with the support of a few others
  2. there was strenuous objection to the inclusion of this proposal as an Appendix by several Committee members as they felt that despite my cautionary remarks it would give this proposal undue and unjustified weight in the Boards deliberations.
    My decision to include it is based on my confidence that the Board will not be unduly influenced in the circumstances BUT more importantly it is a proposal for implementation with support from several committee members and is within the mandate of this Committee.
  3. It should,however, also be noted by the Board that this proposal ...goes ''beyond" the recommendations of WIPO2 and needs to be looked at carefully with that in mind.

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