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Joint Working Group for WIPO-2 Process Issues

Excerpt from ICANN Public Forum Real-time Captioning, 22 July 2004

PHILIP SHEPPARD: ALEJANDRO, THANK YOU. FIRST OFF, I THINK IT SHOULD BE SAID THAT I'M MAKING THIS REPORT BECAUSE I WAS ASKED TO ON BEHALF OF THE CHAIRMAN OF THIS ADVISORY COMMITTEE, WHICH IS JONATHAN COHEN WHO IS UNABLE TO BE HERE TODAY.

JUST A REMINDER TO EVERYBODY HERE WHAT THE TASK WAS. THIS IS IN RESPONSE TO A REQUEST FROM WIPO, WORLD INTELLECTUAL PROPERTY ORGANIZATION, ALSO ENDORSED BY THE GAC FOR WHAT IS ESSENTIALLY -- AND I MUST SAY ALSO, THE WORDS IN THESE SLIDES WERE MINE, AND I'LL DO MY VERY BEST TO GIVE THE FLAVOR OF WHAT YOU WILL FIND IN THE FINAL REPORTS, WHICH SHOULD BE WITH YOU, I THINK N THE NEXT FEW DAYS. SO IT CAME AS A REQUEST FROM WIPO, ENDORSED BY THE GAC FOR A UDRP, UNIFORM DISPUTE RESOLUTION POLICY, TYPE PROCESS TO ADDRESS ESSENTIALLY WHAT WERE PERCEIVED AS PROBLEMS OF CYBERPIRACY IN CERTAIN COUNTRY NAMES AND THE NAMES OF INTERNATIONAL ORGANIZATIONS. THE REQUEST IN TERMS OF HOW THEY SHOULD BE ADDRESSED WAS SLIGHTLY DIFFERENT TREATMENT. THE DETAIL OF THAT IS ALSO IN THE REPORT. THE FLAVOR OF THAT IS A RELEVANT NOTE TO BOTH. AS I SAY THE ADVISORY COMMITTEE WAS CHAIRED BY JONATHAN COHEN, AND HAD A VERY BROAD GROUP OF INTERESTS AND PEOPLE IN IT SO CERTAINLY WE ALL FELT THE RIGHT PEOPLE WERE THERE TO DISCUSS. AND I THINK IT'S TRUE TO SAY THAT IN TERMS OF THE OUTCOME, IT WAS LIVELY AND DIVIDED THROUGHOUT OUR DISCUSSIONS, AND YOU'LL SEE IN PARTICULAR AT LENGTH DISCUSSIONS SUMMARIZED IN THE FIRST REPORT, THE INTERIM REPORT OF THAT COMMITTEE. SECOND RATHER IMPORTANT OUTCOME IS TO SAY THERE WAS NO CONSENSUS. THERE WAS ABSOLUTELY NO CONSENSUS, I'M AFRAID.

THE REPORT IS GOING TO BE BEFORE YOU. WHAT YOU'LL FIND THE REPORT DESCRIBES IS A NUMBER OF OPTIONS, AND FOR EACH OF THOSE OPTIONS IT TELLS YOU A WHOLE SET OF REASONS WHY THESE OPTIONS ARE VERY BAD OPTIONS AND A WHOLE SET OF REASONS OF WHY THESE OPTIONS MIGHT WORK. SO I'M AFRAID, GENTLEMEN AND LADIES OF THE BOARD YOUR JOB IS NOT GOING TO BE EASY BASED ON THIS REPORT BECAUSE WE'RE NOT GIVING YOU ANY FIRM RECOMMENDATION BECAUSE WE WERE UNABLE TO ACHIEVE A CONSENSUS IN ORDER TO DO SO. HOWEVER, LET ME JUST GIVE YOU A FLAVOR IN TERMS OF WHERE WE COME OUT IN THOSE DISCUSSIONS. AND OPINIONS AGAINST WERE ESSENTIALLY OPINIONS AGAINST DOING ANYTHING AT ALL. SAYING WE HAD THIS REQUEST, WE REALLY THINK WE SHOULD DO NOTHING FURTHER. AND SOME OF THE REASONING THERE WAS A FEELING THAT THE EXISTING TRADEMARK UDRP ACTUALLY ADDRESSES SOME OF THOSE ISSUES FOR CERTAIN COUNTRIES AND CERTAIN ORGANIZATIONS, AND MAYBE THERE'S STILL A ROOT THERE THAT COULD HELP WITH MANY THINGS. THERE WAS A LOT OF DISCUSSIONS IN TERMS OF APPLICATION FOR INTERNATIONAL LAW AND WHAT CONSTRAINTS THAT HAS IN TERMS OF COUNTRY NAMES. THERE WAS CONCERN ALSO THAT THE NATURE OF THE QUEST, THE NATURE OF COUNTRIES AND INTERNATIONAL ORGANIZATIONS MEANT THAT ONE OF THE FUNDAMENTALS OF THE TRADEMARK UDRP, WHICH IS THAT AT THE END OF THE DAY, IF YOU WIN OR LOSE, YOU DON'T LIKE THE RESULT, IT DOESN'T MATTER. YOU CAN STILL GO TO COURT. SO WITH THE TRADEMARK UDRP, ALL ICANN WAS DOING WAS FACILITATING A FAST TRACK METHOD THAT HAS PROVED TO BE EXTREMELY SUCCESSFUL IN OUR WORLD. BUT WE WERE NEVER DOING ANYTHING THAT SAID COURT IS NOT YOUR FINAL OPTION. AND THERE WERE CERTAINLY IMPLICATIONS IN THE REQUEST TO SAY THAT THINGS MIGHT HAVE TO BE DIFFERENT. AND FINALLY IT'S POINTED OUT IN PRELIMINARY DISCUSSIONS THE GNSO ALSO HAD EXPRESSED CONCERNS IN TERMS OF SIMILAR MODIFICATIONS. SO WHAT WERE THE OPINIONS EXPRESSED IN FAVOR OF DOING SOMETHING? FIRST OFF, CLEARLY, THERE WAS A PROBLEM PERCEIVED BY CERTAIN COUNTRIES, ENDORSED BY IMPORTANT BODIES, SO THERE'S A PROBLEM OUT THERE THAT NEEDS TO BE FIXED. ALTHOUGH IT IS UNDERSTOOD THAT THERE WERE INTERNATIONAL -- THERE WERE CONCERNS IN TERMS OF INTERNATIONAL LAW, PERHAPS NOT ALL THOSE ARGUMENTATIONS WERE PERSUASIVE AND PERHAPS THERE ARE WAYS TO GO GET AROUND THAT. PERHAPS THERE ARE ARBITRATION AS AN ALTERNATIVE. IS THAT A CONCERN AS FAR AS THE WAY THE TRADEMARK UDRP OPERATES. ANYWAY, THE BOARD IS HAVING ADVICE FROM THE (INAUDIBLE) SUPPORTING ORGANIZATION THROUGH THE GNSO BUT IT'S GOING TO BE A BOARD DECISION WHETHER WE GO FORWARD WITH THIS. YOU'LL FIND IN THE FINAL REPORT THAT COMES TO YOU THERE WAS AN ANNEX IN THAT, AND THAT ANNEX IS A -- WAS DONE BY ONE MEMBER OF THE THREE GAC REPRESENTATIVES AS AN ATTEMPT TO SHOW WHAT A UDRP MIGHT LOOK LIKE IF MODIFIED IN THE WAY THAT IT WAS REQUESTED. IT IS THERE AS ILLUSTRATION. THAT WAS SUPPORTED BY ALL THREE OF THE GAC REPRESENTATIVES ON THAT GROUP, BUT BY NOBODY ELSE. SO WHAT IS THE WAY FORWARD? I'M AFRAID THE WAY FORWARD IS ESSENTIALLY UNCERTAIN. THE CHAIR OF OUR GROUP BELIEVES THAT A NEW UDRP MAY BE ACCEPTABLE TO PERHAPS THE WIDER COMMUNITY SO LONG AS WE CAN KEEP THE ESSENCE OF THE CURRENT PRINCIPLES BEHIND THE TRADEMARK UDRP. AND THAT MEANS THERE WAS A DIFFERENCE BETWEEN THAT AND THE ORIGINAL REQUEST THAT WE RECEIVED, AND IT MAY BE THAT SUCH A UDRP CONFORMING TO THOSE PRINCIPLES THAT IS SEPARATE TO THE EXISTING TRADEMARK UDRP MAY HAVE ALSO A NUMBER OF PROBLEMS AND THAT MAY BE ACCEPTABLE TO PERHAPS THE WIDEST POSSIBLE COMMUNITY THAT WE'RE GOING TO BE ABLE TO ACHIEVE IF ACTION IS TAKEN ON THIS. AND AS AN EXAMPLE OF THE REQUEST TO MAKE IT A SEPARATE POLICY, THERE WAS A LETTER FROM INTA, THE INTERNATIONAL TRADEMARK ASSOCIATION, A WHILE BACK THAT EXPLAINED THE DETAIL OF WHY THAT WAS QUITE AN INTERESTING IDEA. A LOT OF THAT SIMPLY SAYING LOOK, WE HAVE SOMETHING THAT WORKS AT THE MOMENT, WE HAVE SOMETHING ELSE THAT'S UNCERTAIN. SO IF WE WANT TO DO IT, BETTER TO DO IT IN PARALLEL RATHER THAN TOGETHER. AND ALSO DISCUSSION IN TERMS OF WHERE DO WE GO FROM HERE, WHO MIGHT DO SOMETHING IF WE ARE GOING TO DO THAT, DOES THIS NOW BECOME A PDP FOR THE GNSO? ALL THOSE ARE OPEN QUESTIONS. THE REPORT IS IN TWO PARTS. THE INTERIM REPORT IS A LISTED DISCUSSION AND THE FINAL REPORT IS THE CHAIR'S ATTEMPT TO SUMMARIZE IN GREATER DETAIL THAN I HAVE DONE JUST NOW WHAT THOSE DISCUSSIONS WERE AND WHAT THE OPTIONS ARE BEFORE YOU. AND THAT'S IT. THANK YOU.

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