WIPO Final Report Flops

[Ed Gerck <egerck@mcg.org.br>]

                                 WIPO Final Report Flops

Ed Gerck*


The Final Report of the WIPO Internet Domain Name Process for Internet
Top Level Domains (TLDs) is available at  http://wipo2.wipo.int -- and, it is
a world flop.  At most, it can be classified as a voluntary business plan support
for the rather unknown .IO generic-TLD (gTLD) and WIPO's exclusive contract
for trademark resolution within that domain at the price tag of US$ 6,000 per
litigation, pre-paid.

The previous version, known as RFC3,  drew criticism both from Internet users
and from trademark holders.  It had basic inconsistencies, such as considering
Internet Domain Names which are unique, valid worldwide and without a time
limit, a par with trademark names, which are only valid in a jurisdiction and
within a class, for that registration's duration. For a summary of more than ten
such inconsistencies, as well as references to other studies, see [1].

In fact, a trademark name such as FORD can legally designate several different
businesses, such as a car manufacturer, a model agency, a consulting group, an
acronym or any number of persons and entities worldwide, legally, as defined in
Intellectual Property laws and agreements.  However, there can only be one
FORD.COM on the Internet.

The Final Report by WIPO, even though it addresses several issues pointed out
in [1],  such as the inadequacy of WIPO's "declaration of conflict" between
trademark and the DNS name systems, has failed to solve its own inconsistencies
such as exemplified above and thus cannot be recommended worldwide, as itself
declares:

  "WIPO recognizes that the recommendations contained in this Report
   are intended  to apply only to the gTLDs."

In other words, WIPO did not feel they had a solution that they could recommend
to any world State, so that WIPO does not even consider its Report being  directed
to +97%  of  the Internet  Domains.  These domains are assigned to countries
according to their unique two-letter country codes, and are called ccTLDs.  With the
technical Internet- relevant flaws [1] still in the Report, this is indeed a sober 
attitude by WIPO.

Reading the Report suggests that it deadlocked over its own inconsistencies and
could not find any compelling argument to even suggest recommendations to a
world State.

However, all gTLDs in existence or in the future cannot be distinguished in any
functional form from ccTLDs and, each one of them must also exist in a sovereign
world State and be subject to their jurisdiction -- the same States that WIPO
considered  better not to recommend  anything from their Report.

Thus, WIPO's  Final Report implicitly recognizes that its recommendations are not
intended to apply to any TLD, i.e. to any of Internet's Domains -- even gTLDs.  It
is a world flop.

Of course, any world State or gTLD administration such as ICANN is free to apply
the Report in totum or in part but, possibly, many States and ICANN will  recognize
that the Report recommendation's are not consistent with the intersubjective  usage [1]
of Internet Domain Names, while also realizing that present laws are already effective
to curb abuse [1,2].  So, new rules will most likely vacate others in existence, while
damaging the Internet's economic potential. And, as estimated from actual data in [1],
only 0.04% of Internet Domain Name cases are expected to be in some type of conflict
with trademarks -- even for famous trademarks based on a single common word.  This
adds serious privacy and security concerns [1] over the Report's recommendations,
which world States may find inconsistent with their own Constitutional Rights [1].

Also, new gTLDs can form spontaneously worldwide according to diverse market needs,
because they do not need to be under the auspices of ICANN or any world State and
can effectively interoperate with all other gTLDs and ccTLDs in non-conflict access
through standard DNS protocols.  Arguably, having  full rights to name trademark and
business protection -- since it is a fundamental tenet of trademark law  that ownership 
of an inherently distinctive  mark, such as in a TLD, is governed by priority of use.

At the end, the Report seems to justify itself only to the "Internet One" .IO domain
 [3], which is not itself under ICANN.  The .IO domain is a gTLD that has an exclusive
commercial agreement  with WIPO so that WIPO is the sole arbitrator of trademark
litigation within that TLD, where WIPO receives pre-paid revenues for such litigation,
around US$ 6,000 for litigation.  The Report is need to justify WIPO's actions under
their commercial agreement with the .IO domain owners [3] and is thus part of a business
plan between WIPO and Internet One, also reflected in an alternate WIPO's website [4].

Outside of that domain and that price tag, the WIPO Final Report is a flop that should
be taken at its proper weight in any usage of it that ICANN or other Internet-related
body or independent TLD may contemplate.


* (c) Copyright Ed Gerck, 1999, all rights reserved. Permission granted to copy
with author and copyright citation. E-mail: egerck@mcg.org.br

==================
REFERENCES

[1]  Ed Gerck, "Arguments for Recalling WIPO RFC3 and Proposal for DNS/TM
Resolution", April 1999, FirstMonday at http://firstmonday.org/issues/issue4_4/gerck/

[2] BROOKFIELD v. WEST COAST, US Court of Appeals, Ninth Circuit,
at  http://www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9856918.htm and
http://www.news.com/News/Item/0,4,0-35610,00.html?st.ne.140.head
http://www.lawnewsnetwork.com/practice/techlaw/news/apr/e042399a.html
http://www.news.com/News/Item/0,4,34329,00.html
http://www.nytimes.com/library/tech/99/04/cyber/cyberlaw/30law.html

[3] As announced and sold in "Internet ONE" - http://www.io.io

[4] The alternate WIPO site at  http://wipo1.wipo.int  -- "WIPO On-Line Dispute 
Resolution Service for INternet  ONE" -- See also http://wipo2.wipo.int, the official 
WIPO site.
----------------------------------------------------------------------------------------